Iowa law protects reports of public employees’ misconduct

Despite a presumption of liberal access, Iowa's Public Records Law allows misconduct by government employees such as University of Iowa physician Gary Hunninghake to be concealed and prevents the public from learning whether employers were rigorous in investigating violations of rules and laws.

The contrast between the Public Records Law in Iowa and at least one neighboring state is stark.

Courts in Wisconsin apply the law in support of 'the public's interest in disciplinary action taken against public officials and employees, especially those employed in a law enforcement capacity. ...'

As a result, misconduct frequently is illuminated. Government accountability can be measured incident by incident.

In Iowa, citizens almost always remain in the dark about misconduct unless criminal charges reach court.

The University of Iowa suspended Hunninghake with pay last April. UI did not immediately announce its suspension of the distinguished professor of medicine, nor that it started an investigation that would last several months.

His salary accrual has since surpassed $300,000.

The fact the university was investigating the professor-physician for child pornography likely would not have been known if Hunninghake had not faked an assault on himself in Illinois and reported the alleged crime to Chicago police 11 months ago.

UI officials shared confidential information with police who were investigating the fake assault, but the local porn investigation did not come to light until February when the Daily Iowan checked Chicago police records. (Hunninghake eventually pleaded guilty to disorderly conduct in connection with the report of the fake assault.)

Wisconsin's law allows the public to know about incidents of the type that go unreported in Iowa.

In a current case, a Wisconsin educator had pornographic images on his work computer — starting four jobs ago.

Caught viewing porn at work in 2005 in his role as a Madison school district coordinator, Christopher J. Nelson was allowed to resign for health reasons. He then worked in three other districts and was superintendent of the rural New Holstein district in January when he was arrested for allegedly using an online chat room to set up a sexual encounter with an undercover Milwaukee cop posing as a teenage boy.

In Iowa, disciplinary files are off limits to parents, voters, taxpayers and journalists in every town along a public educator's path — unless criminal charges flush them to daylight.

Wisconsin parents could have learned the truth about Nelson, but the districts that hired him resignation after resignation either did not check his disciplinary files from Madison or did but hoped for better results.

In another incident, an officer honored as Police Officer of the Year by an association of Wisconsin school administrators, engaged in a sexual relationship with a female motorist he stopped for a traffic violation.

Despite warnings and a suspension, Officer Jason Laurin called the woman hundreds of times on his police cell phone. On duty and in uniform, he met her for midday trysts, which could have delayed his response to 911 calls.

After months of investigation, Laurin was allowed to resign and the Two Rivers Police Department agreed to keep the reason confidential.

The public learned about his misconduct because a reporter asked for his disciplinary file.

If an Iowa officer in similar circumstances applied for law enforcement work in another community, the dates of his employment and the fact he resigned would be about as much information as Iowa law allows his previous department to confirm.

Wisconsin doesn't make the release of records contingent on a crime having occurred. The courts have placed 'great importance' in disclosing disciplinary records of public employees who violated 'significant work rules.'

'Some conduct affects public safety or welfare or public funds,' said Ruth Cooperrider, Iowa's acting citizens'aide/ombudsman.

'The public may have interest in knowing if a law enforcement officer used excessive force and that person goes on to another job and becomes a problem at the new agency, or a city clerk who mishandled money and ends up working for another city and has similar problems,' she said.

'Wouldn't it have been good to know that this person had issues?'

Kathleen Richardson, a Drake University journalism professor and executive secretary of the Iowa Freedom of Information Council, said the section of the Public Records Law that allows government to keep personnel records confidential 'has turned into a black hole in which all sorts of information is never released.'

Government employees, like private sector employees, get in trouble for any number of reasons, Richardson said.

'The government employee then ends up agreeing to leave employment as opposed to being fired, but then just moves on down the road to another community and gets a similar position and it comes up later, perhaps when that person does something even more egregious, that this is a pattern of behavior that didn't come to the public's attention because it was cloaked in secrecy of the exceptions to the Public Records Law.'

Joseph E. Hamm, a music teacher at Northwest Junior High in Coralville, resigned in 1996 after being charged with sexual harassment. He eventually was placed on a year's probation for making sexual advances toward a 14-year-old girl.

His plea deal resulted in his criminal record being expunged. And, because Iowa law prohibits release of disciplinary files, Hamm's past went undetected when he was hired in 1999 as a music teacher at a Kansas City, Mo., high school.

Two years later, Hamm pleaded guilty to sexually assaulting a 7-year-old boy whom he had kidnapped and sodomized.

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Iowa's Public Records Law has a lot to say about personnel files and disciplinary records. In aggregate, the words deny public access to the details of inappropriate behavior.

Attorney General Tom Miller uses Sunshine Advisories posted on the Iowa Department of Justice website to sum up the application of the law in most situations.

'Information about an employee's promotion or pay increase is public, but performance evaluations or disciplinary records may be kept confidential,' Miller wrote in one advisory.

Miller's words suggest a degree of custodial discretion. But, disciplinary records simply do not reach the public unless they become evidence in a court case.

Every recent Iowa legislative session has witnessed the effectiveness lobbyists for cities, county boards, school boards and public employees have in blocking or watering down bills that would make state and local government more transparent.

'They're all — I don't want to say they're trying to keep records closed, but they certainly don't have a spirit of openness and certainly not a spirit of expanding the openness as it is in the current law,' said Chris Mudge, executive director of the Iowa Newspaper Association.

Cooperrider, the acting state ombudsman, said it was her agency that 'introduced this idea of opening the personnel records to include disciplinary action.'

As far back as 2002, the proposed measures would have released records when a public employee had been discharged, suspended, demoted or docked pay, Cooperrider recalled. The nature of the misconduct also would have been identified.

'It was much broader when we first introduced the idea,' she said. 'Then, over (legislative) debate and discussion,' the amount of information proposed for release was limited to 'discharged.'

A bill introduced in the Senate this year gave up on the idea of finding out what the employee did and settled for language that would have made public only the fact that some final disciplinary action resulted in discharge.

After 'debate and discussion,' the bill was amended to make public only the fact the employee's discipline had resulted in discharge — and then only after the employee had exhausted 'all applicable, contractual, legal, and statutory remedies.'

The public eventually might learn an employee had been fired months or years ago, but not what the employee did and not until every appeals process had played out.

The bill passed the Senate but has not been taken up by the House.

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The move toward disciplinary disclosure advanced in Wisconsin in part as a result of court interpretation of existing laws, according to Bob Dreps, a First Amendment lawyer in Madison.

Wisconsin's Court of Appeals resolved any ambiguity about legislative intent in 2006, ruling in a case about a state conservation warden's disciplinary file:

'When individuals become public employees, especially in a law enforcement capacity, they should expect closer public scrutiny, which includes the real possibility that disciplinary records may be released to the public. ...

'Previous case law on this topic firmly reflects the public's interest in disciplinary action taken against public officials and employees ...

Generations of Iowa lawmakers effectively have said the privacy of disciplined government employees, including those who teach children and those assigned to protect public safety, trumps the public's right to know when they've been disciplined.

As a result, Iowa's Public Records Law also shields state and local government from public reaction if unenforced warnings or superficial investigations were revealed in disciplinary files.

'We're all aware of the fact we live in a time when people are suspicious of government and government officials even to the point of hostility,' said Richardson.

'Anything that government body can do to operate in a manner that is open and accountable goes a long way to diminishing the public suspicion,' she said.

'The more transparent government is in its dealings … the more faith the public has that their government is being run in an appropriate manner.'