Firm representing Connie Schmett regularly appears before her state board

The attorney Connie Schmett retained for a recent ethics inquiry is a partner in the BrownWinick law firm, which represents clients at most meetings of the state’s Health Facilities Council. Schmett has served on that board since 2013.

Rebecca Brommel attended but did not speak at last month’s lengthy Iowa Ethics and Campaign Disclosure Board meeting, which considered a range of issues related to lobbying, personal financial disclosures, and political contributions by Connie Schmett and her husband Kim Schmett. The board’s executive director Megan Tooker introduced Brommel as legal counsel for the Schmetts and noted that the attorney had made arrangements for Tooker to review tax returns, with dollar amounts redacted.

Governor Kim Reynolds requested the investigation in November, after the Schmetts’ consulting work as foreign agents on behalf of Saudi Arabia received widespread media attention. Kim Schmett chairs Iowa’s Employment Appeal Board, while Connie Schmett serves on the Cultural Trust Board of Trustees and the more important Health Facilities Council. That board’s primary job is to approve or deny Certificate of Need applications from health care providers seeking to expand services or open new facilities.

Brommel works for the BrownWinick law firm, which has a large Health Law Practice group. Some partners focus primarily on health law, while others, including Brommel, handle some litigation or administrative proceedings in that area. The firm’s website notes, “The health law attorneys at BrownWinick continually monitor developments related to the CON [certificate of need] rules and other issues that impact health care providers.” On the firm’s health law blog, attorneys occasionally report on Health Facilities Council meetings and judicial or legislative developments related to certificates of need.

A review of Health Facilities Council minutes shows that BrownWinick has represented at least one client at most meetings since Schmett joined the board. Doug Gross, Catherine Cownie, and/or Adam Freed most frequently addressed the council on such matters. Brommel was present for at least one meeting.

Iowa Code provisions on conflicts of interest do not prohibit state board members from being represented by attorneys who bring matters before the body on which they serve. Nor do the Iowa Rules of Professional Conduct for attorneys (Rule 32:1.7 on conflicts) forbid that kind of work for a client. Nevertheless, several lawyers I consulted felt it would be unusual or unwise for an attorney to advise a state regulator on a personal legal matter if the attorney’s firm brought business before the corresponding state board. At minimum, the circumstances create the appearance of a conflict of interest. They might require the board member’s recusal from future decisions relating to the firm’s clients. For those reasons, some attorneys told me they would refer a state official seeking legal representation to outside counsel.

With so many law firms in the Des Moines area, why did Connie Schmett choose a member of BrownWinick’s health law team when facing an ethics board review of her work as a foreign agent, personal disclosures, and campaign contributions?

During a brief telephone interview on January 26, I asked Schmett, wouldn’t it make more sense for her to be represented by some firm that doesn’t bring as much business before the Health Facilities Council? “I didn’t even think about that. I just hired an attorney.”

For this matter, or a long time ago? Schmett declined to state how long Brommel has been her personal lawyer. “You’ll have to take it up with my attorney, Laura. I hired an attorney to represent me. It had nothing with my position on the board.” Even though Brommel’s firm does business before the board? “I have no idea what you’re talking about.”

BrownWinick represents clients regularly before the Health Facilities Council. Does Schmett see that as a possible conflict of interest? “If it did, I would recuse myself.” So she doesn’t see it as an issue that her personal attorney works for a firm that appears before the board? “No, I do not.”

I sought comment from Brommel, who replied via e-mail on January 31,

The BrownWinick Law Firm did not represent Kim or Connie Schmett during the time in which the firm had matters for other clients before Ms. Schmett and her fellow Council Members on the State Health Facilities Council. The representation of Kim and Connie Schmett with regard to the Ethics and Campaign Disclosure Board matter did not begin until after the November 2017 meeting of the State Health Facilities Council. Before agreeing to represent Kim and Connie Schmett, BrownWinick advised Ms. Schmett that she would be obligated to recuse herself from any matters brought before the State Health Facilities Council during the time BrownWinick was representing Kim and Connie Schmett if such matter involved applicants or affected parties represented by BrownWinick.

Brommel has not responded to multiple attempts to follow up: going forward, will Connie Schmett need to recuse herself from cases involving BrownWinick clients? Or has the firm’s representation of her and Kim Schmett ceased with the conclusion of the ethics board’s investigation?

I don’t know whether BrownWinick represents any of the facilities whose applications will be considered at the council’s February 21 meeting. I enclose below links to minutes from five years of Health Facilities Council meetings, with short summaries to demonstrate how often Brommel’s law partners have appeared. In almost all the cases, Schmett voted for the position sought by the BrownWinick client–mostly as part of a unanimous board, sometimes in a split decision.

Complicating matters, the five-member council currently has a vacancy. Roger Thomas resigned last month for personal reasons, according to Becky Swift, Certificate of Need Program manager for the Iowa Department of Public Health. The council requires four members for a quorum. If only three members are able to vote on an application because of a recusal, that agenda item will need to be postponed until at least four people can approve or deny a certificate of need.

Conversely, if Schmett casts a decisive vote for or against a controversial application affecting a BrownWinick client, attorneys for the losing party may challenge the council’s decision, on the grounds that Schmett should have recused herself.

Final note: decades before Governor Terry Branstad appointed Schmett to the Health Facilities Council, she worked in his office when Doug Gross was Branstad’s chief of staff. That kind of connection doesn’t represent a conflict of interest; it’s simply a fact of political life in a town with a long-serving governor. However, the acquaintance may shed light on why Gross argues so many certificate of need cases before the state board, rather than leaving that work to BrownWinick partners who co-chair the health law practice group.

Health Facilities Council meetings during 2017

February 21: Doug Gross and Catherine Cownie represented three BrownWinick clients making applications. The council approved them all unanimously.

April 19: Doug Gross and Catherine Cownie represented one BrownWinick client. The council approved the application unanimously.

April 28: Doug Gross participated in oral arguments; Catherine Cownie and Rebecca Brommel “were present on the phone but did not speak.” Council unanimously opposed the motion for a stay, going against the BrownWinick client position.

July 19: Doug Gross represented three BrownWinick clients. The council unanimously voted to extend one client’s project. In another decision, Gross represented parties opposing a certificate of need, and the council voted against the application by 3 votes to 2, with Connie Schmett casting the decisive vote for the position BrownWinick was advocating. In a different case at the same meeting, Gross represented a hospital opposed to an application. Members granted the certificate of need by a 3-2 vote; Schmett was one of the two voting no.

July 20: Doug Gross represented a BrownWinick client whose application was unanimously approved. He later represented a different client opposing a 72-bed psychiatric hospital in Bettendorf. The motion granting the certificate of need passed 4-1, with Schmett casting the only no vote.

October 6: Doug Gross represented a BrownWinick client requesting a rehearing of an earlier case; the request was granted 4-1, with Schmett one of the four yes votes.

October 25: Doug Gross represented two BrownWinick clients whose applications for extensions were approved unanimously. Gross represented a different client seeking a certificate of need for an outpatient surgical facility in Burlington. The council denied the certificate of need by 3-2 vote; Schmett was one of the two who supported the BrownWinick client’s application.

October 26: Adam Freed represented a BrownWinick client whose application was unanimously approved. Doug Gross represented a client who opposed the acquisition of a linear accelerator and a CT simulator for Mercy Medical Center in Dubuque. Schmett was one of the council members who denied the certificate of need by a 3-2 vote.

November 7: Doug Gross represented a BrownWinick client opposing a certificate of need application. The council approved the certificate of need by 3-2 vote. Schmett was one of the two members voting no.

December 12: No one from BrownWinick appeared at this short electronic hearing.

Health Facilities Council meetings during 2016

February 24 and 25: Schmett was absent from this meeting, which included a project review of a 72-bed Bettendorf psychiatric hospital. Doug Gross represented a client opposing the proposal. The council deadlocked 2-2, so did not approve the certificate of need. The next day, Gross represented two BrownWinick clients; the council granted both applications unanimously.

April 27: Doug Gross participated in a telephonic meeting; the BrownWinick client’s request was approved unanimously.

June 24: Doug Gross and Catherine Cownie were present on the phone during this short telephonic meeting but did not represent a BrownWinick client.

July 27: Adam Freed was present on the phone during this short telephonic meeting but did not represent a BrownWinick client.

October 11 and 12: Schmett was absent from this meeting. Doug Gross represented a BrownWinick client whose application was unanimously approved. He represented a different client opposing a proposed 72-bed psychiatric hospital in Bettendorf. The council deferred the vote until October 27.

October 26: Doug Gross represented a BrownWinick client whose application for a certificate of need was unanimously approved.

October 27: Doug Gross represented a client whose application for a certificate of need was unanimously approved. Schmett left the meeting before the council considered the application for the psychiatric hospital in Bettendorf. The council deadlocked 2-2; no one from BrownWinick appears to have spoken during that portion of the meeting.

November 15: Doug Gross represented a BrownWinick client opposing an application to initiate open heart surgery at Mercy Cedar Rapids. The council approved the application 3-2; Schmett voted no.

December 21: Catherine Cownie and Doug Gross were present on the phone for this short electronic meeting but did not bring any business before the council.

Health Facilities Council meetings during 2015

February 23: No one from BrownWinick participated in this meeting.

April 8: Catherine Cownie was present on the phone for this short electronic meeting but did not bring any business before the council.

May 6: Connie Schmett was absent from this meeting, and no one from BrownWinick participated.

August 4: Doug Gross represented citizens opposed to replacing a nursing home facility in Hardin County. The proposal had generated an “unprecedented response of community members,” according to the minutes. Iowa Department of Public Health staff had determined the project to be “not reviewable,” meaning the facility did not require a certificate of need. Most of the time, the Health Facilities Council affirms the department’s recommendation. But at this meeting, a motion to affirm failed by a 2-3 vote. Schmett was one of the three members voting not to affirm (the action sought by BrownWinick clients).

September 17: Doug Gross was present on the phone for this short telephonic meeting but did not represent a client.

October 28 and 29: No one from BrownWinick participated in this meeting.

Health Facilities Council meetings during 2014

April 14: Doug Gross represented a BrownWinick client seeking to acquire a linear accelerator and CT scanner for a Cedar Rapids hospital. The council approved the certificate of need 3-2, with Schmett one of the three voting in favor. At the same meeting, Adam Freed represented a different client seeking an extension, which passed unanimously.

July 21: Catherine Cownie and Adam Freed represented a BrownWinick client whose application for a certificate of need passed unanimously. Doug Gross represented a different client who also received unanimous approval. The council also considered a request for rehearing filed by a facility objecting to the decision the previous year to grant a certificate of need for a linear accelerator and CT scanner at a Cedar Rapids hospital. Gross was representing that hospital, which opposed the request for rehearing. The council voted 4-1 to deny the request for rehearing, with Schmett among the four members supporting the BrownWinick client’s position.

October 21: No one from BrownWinick participated in this meeting.

November 3: Doug Gross represented a BrownWinick client seeking a certificate of need, which the council unanimously approved. Gross represented a different entity whose application was denied on a 3-1 vote. Schmett cast the lone vote supporting the BrownWinick client position.

Health Facilities Council meetings during 2013 after Connie Schmett joined board

October 7: The council unanimously affirmed the IDPH determination that a certificate of need was required to expand an outpatient surgery center in Cedar Rapids. Catherine Cownie represented a BrownWinick client that was challenging the department’s determination.

October 8: Catherine Cownie represented a different BrownWinick client opposed to a new nursing home facility in Linn County. But four council members including Schmett approved the certificate of need.

November 4: No one from BrownWinick represented a client at the meeting.

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