"Accountability, openness, and transparency" are in the eye of the beholder (updated)

Governor Terry Branstad responded today to two political scandals that broke while he was on vacation last week. The big news was the governor signing an executive order “to increase accountability, openness and transparency of employee settlements.”

Branstad’s behavior reflects an odd understanding of those words. He is not holding anyone accountable for forcing out permanent employees and attempting to keep settlement deals a secret. His administration’s alleged “thorough review” of the deals took place behind closed doors over the span of a few days. Branstad rejected any outside investigation of the matter and dismissed accusations against Iowa Workforce Development Director Teresa Wahlert without even basic fact-finding.  

Remember, Jason Clayworth’s report for the March 16 Des Moines Register wasn’t just about secret settlements–it was also about alleged political cronyism which forced out qualified, career state employees. Clayworth also discussed the Branstad administration’s practice of reassigning many state employees to “at will” employment status.

At today’s press conference, Branstad glossed over several key aspects of Clayworth’s reporting and focused his attention on settlements that were arranged to escape public scrutiny. The governor particularly denounced the unenforceable confidentiality clauses that accompanied some of the settlements.

“Confidentiality provisions that prevent disclosure of agreements are wrong and I am deeply disappointed that they were ever considered, let alone used,” Branstad says. […]

“This ill-advised clause in a settlement in contrary to the priority of this administration to be open and transparent.  It is unacceptable,” Branstad says. “Iowans expect more from government. Iowans deserve better.” […]

“That’s why I did the executive order,” Branstad says. “I wanted to make it abundantly clear by executive order it’s illegal and if this ever happens again, there are going to be heads rolling.”

So, no heads will roll over negotiating these deals and trying to cover them up. At the press conference, Branstad explained away Department of Administrative Services Director Mike Carroll’s actions by saying Carroll comes from the private sector, where confidentiality agreements are commonplace. But Clayworth’s reporting points to deliberate efforts to conceal these settlements, a sign that the people responsible knew it looked bad to eliminate certain jobs and wanted to cover the trail. What were you saying about “accountability”?

Here is the first part of the governor’s press release announcing his action to prevent secret settlements:

Gov. Branstad takes action to increase accountability, openness and transparency in employee settlements

March 24, 2014

Administration releases all employee settlements since January 14, 2011; Ensures openness by making all settlements public moving forward; Ends troubling use of confidentiality agreements in personnel settlements; Increases accountability by requiring additional review

(DES MOINES) – Gov. Terry E. Branstad today announced the signing of Executive Order 85 to increase accountability, openness and transparency of employee settlements.

Speaking from the administration’s weekly press conference, Branstad said, “After a thorough review, the facts show employees were not terminated based on political affiliation. I am troubled and disappointed by the use of confidentiality agreements. This practice of keeping information from the taxpayers is unacceptable and wrong.”

Branstad continued, “I’ve signed Executive Order 85 today to ensure the executive branch operates in a transparent manner, ending the use of these confidentiality agreements, increasing accountability, and making employee settlements readily available for taxpayer viewing online.”

Executive Order 85 does the following:

ACCOUNTABILITY: No state agency may enter into a settlement agreement on behalf of the state unless the personnel settlement agreement is reviewed by the Attorney General’s Office; and

For an agency not governed by the Board of Regents, the Director of the Department of Management; Director of the Department of Administrative Services and the head of the agency involved with the matter at issue each approve the settlement agreement in writing; or

For an institution governed by the Board of Regents, the executive director of the Board of Regents and the head of the institution involved with the matter at issue each approve the settlement agreement in writing.

OPENNESS: No personnel settlement agreements shall contain any confidentiality provisions.

TRANSPARENCY: Every final personnel settlement agreement shall be posted to the Department of Administrative Services or Board of Regents website in a location easily accessible to the public.

Executive Order 85 is not intended to supersede any law or collective bargaining agreement. The settlement agreements can be found on the Iowa Department of Administrative Services website under the “News & Information” heading titled “Settlement Agreements.”

“Governor Branstad and I are steadfastly committed to transparent government,” said Reynolds. “Executive Order 85 ends the misguided practice of using confidentiality agreements, and gives the Iowa taxpayers an opportunity to view settlements while being guaranteed the agreements are facing increased scrutiny and oversight.”

Gov. Branstad and Lt. Gov. Reynolds asked staff to gather and review the facts after learning of the use of the confidentiality agreements. After a review of the facts of the agreements, Governor’s Office chief of staff Matt Hinch, legal counsel Brenna Findley and Iowa Department of Management director David Roederer found the following:

321 employee settlements occurred since January 14, 2011.

24 of the 321 settlements contained confidentiality agreements.

A report from the staff reviewing the facts can be found here.

I’ve enclosed the full text of the new executive order at the end of this post.

The “thorough review” refers to this five-page document compiled last week by the three staffers Branstad charged with investigating the matter: his chief of staff Matt Hinch, his legal counsel Brenna Findley, and Department of Management Director David Roederer. All three have long been involved with Republican Party politics and therefore have reason to downplay or dismiss any allegations of political cronyism. I didn’t see any rebuttal to what several former state employees told the Register’s Clayworth about political undertones to their job losses.

Perhaps the governor thinks his staffers’ review was “thorough” enough because they uncovered more settlements with confidentiality clauses and lump-sum payments than the Des Moines Register originally reported. But several important questions remain unanswered. The governor won’t second-guess Carroll’s decisions as head of the Department of Administrative Services and won’t agree to letting outsiders review the facts.

Speaking of which, Branstad also responded today to State Senator Bill Dotzler’s allegations that Iowa Workforce Development Director Teresa Wahlert has been interfering with the work of administrative law judges. This time, the governor didn’t even need a half-assed internal review to conclude that Wahlert did nothing wrong.

“I have great confidence in Teresa Wahlert,” Branstad said this morning during his weekly news conference. “I think she’s an outstanding administrator. I think she’s very fair.” […]

“These are very unfair, personal attacks against her and I’m very proud of the work that she has done,” Branstad said.

The governor repeated those points for emphasis:

“She’s an outstanding administrator,” Branstad said of Wahlert. “These are partisan political attacks and I think she’s answered every one of them and answered them very satisfactorily. I’m very proud that she is one of our outstanding department heads.” […]

The “so-called tip sheets” are no different than the public advisories the Department of Revenue writes to help Iowans file their taxes, he said, and are available to employers and employees alike. Wahlert, moreover, has never “second-guessed or tried to change” a judicial ruling in an unemployment case.

“I think we’ve got a very fine department head here who’s done an outstanding job,” he said. “I think these are very unfair personal attacks.”

While we’re on an accountability and transparency kick, governor, how about asking the administrative law judges about Wahlert’s “outstanding” management style? The Des Moines Register did and got some troubling feedback.

The allegations against Wahlert include creating a hostile work environment for judges who did not follow her “pro-employer, anti-employee philosophy;” eliminating the chief administrative law judge’s job and making herself the supervisor of the judges; instructing the administrative law judges to get involved in outreach to business leaders; and requiring them to develop “tip sheets” to help businesses with cases against former employees.

In a letter sent to the U.S. Department of Labor, Wahlert disputed the allegations.

Yet Joseph Walsh, the former chief administrative law judge, who now works elsewhere in the agency, echoes the concerns Dotzler expressed.

He said Wahlert came to him with complaints from employers and asked him to review and evaluate judges’ decisions. In at least one case where Walsh found that the judge made the right ruling, she ordered him to write an “employer tip sheet” so other employers could avoid paying benefits in similar cases.[…]

Many administrative law judges, including those who hear disputes about welfare benefits or driver’s license suspensions, are housed in a division within the Iowa Department of Inspections and Appeals. The judges who hear unemployment appeals are housed in Iowa Workforce Development.

The Legislature should explore that structure. When judges are overseen by an agency director and are issuing decisions on disputes that involve that very agency, questions can arise about their ability to be truly independent.

Any relevant comments are welcome in this thread.

Executive Order Number Eighty-Five

WHEREAS, Transparency provides Iowans the necessary access to information to hold our government accountable; and

WHEREAS, Our Open Records Act is essential to ensuring openness, including settlement agreements (Iowa Code section 22.13); and

WHEREAS, Our administration has maintained a steadfast commitment to transparent government, and the use of confidentiality agreements within employee settlements is troubling and runs contrary to our priority of operating state government in an open manner.

NOW, THEREFORE, I, Terry E. Branstad, Governor of the State of Iowa, declare that accountability, openness and transparency are essential to the efficient operation of state government and in the best interest of taxpayers.  I hereby order and direct that:

Accountability: No state agency may enter into a personnel settlement agreement on behalf of the state unless the personnel settlement agreement is reviewed by the Attorney General, or his or her designee; and

For an agency not governed by the Board of Regents: the director of the Department of Management, director of the Department of Administrative Services and the head of the agency involved with the matter at issue each approve the personnel settlement agreement in writing; or

For an institution governed by the Board of Regents: the executive director of the Board of Regents and the head of the institution involved with the matter at issue each approve the personnel settlement agreement in writing.

In the event that subsection 1(a) or (b) is not consistent with a collective bargaining agreement, the relevant head of agency or institution, director, executive director and attorney general designee will be provided with regular reports of personnel settlement agreements.

Openness: No personnel settlement agreement shall contain any confidentiality provision that attempts to prevent disclosure of the agreement itself.

Transparency: Every personnel settlement agreement shall be posted to the Department of Administrative Services or Board of Regents website in a location easily accessible to the public.

For purpose of this Order, the following definitions shall apply:

“Agency” means a unit of state government, which is an authority, board, commission, committee, council, department, or independent agency as defined in section 7E.4, including but not limited to each principal central department enumerated in section 7E.5 and the office of the governor.  However, “agency” does not mean any of the following:

i.      The office of an elective constitutional or statutory officer, other than the office of the governor.

ii.      The general assembly, or any office or unit under its administrative authority.

iii.      The judicial branch, as provided in section 602.1102.

iv.      A political subdivision of the state or its offices or units, including but not limited to a county, city, or community college.

“Personnel Settlement Agreement” means an agreement with the State of Iowa, subject to Iowa Code section 22.13, to resolve a personnel dispute including but not limited to settlement of grievances (excluding those resolved at step one).

This Order shall apply prospectively as of the date of the signing of this Order. This Order shall be interpreted in accordance with all applicable laws.  It is not intended to supersede any law or collective bargaining agreement.

If any provision of this Order, or the application of such provision to any person or circumstance, is held to be invalid, the remaining provisions, as applied to any person or circumstance, shall not be affected thereby.

This Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the State of Iowa, its Departments, Agencies, or Political Subdivisions, or its officers, employees, or agents, or any other person.

IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused the Great Seal of Iowa to be affixed.  Done at Des Moines this 24th day of March, in the year of our Lord two thousand fourteen.

________________________________

TERRY E. BRANSTAD

GOVERNOR

ATTEST:

__________________

MATT SCHULTZ

SECRETARY OF STATE

UPDATE: The Cedar Rapids Gazette’s Todd Dorman and I are on the same wavelength:

So, top politician, and your investigative team made up of top advisors, was this a cover up of politically motivated firings that goes all the way to the top?

“It had nothing to do with politics,” Branstad said. What a relief. Glad that’s settled.

Also, to those who say Wahlert had her thumb on the scales of administrative unemployment justice, the governor says poppycock. Politically-motivated poppycock to boot. We’re not even going to honor those accusations with an in-depth closed investigation by my inner circle.

I’m glad the governor issued his order, and disclosed the additional settlements. But accountability for what already happened is sorely lacking. There should be consequences for this sort of thing beyond a stern talking to on the executive carpet. We also need independent investigations into this stuff.

Senator Bill Dotzler is not backing off from his allegations against Wahlert (click through for audio):

“The front line fact-finders, the first step in deciding whether an individual should receive unemployment benefits, she’s let them know that they needed to side a little bit more with the business side than the employees side,” Dotzler said during remarks on the senate floor. “That’s some serious stuff, ladies and gentlemen and I’m not going to back down from the truth.”

State Senator Matt McCoy said “heads ought to be rolling right now”:

McCoy said Branstad’s budget director should have been able to figure out tens of thousands of state tax dollars were being paid out in these deals.

“The next time these department heads come to you and tell you they can’t afford to implement something because they don’t have the money in their budget clearly they were able to come up with half a million dollars of hush money,” McCoy said.

State Senator Jack Hatch, the Democratic candidate for governor, released this statement on March 24:

HATCH: GOVERNOR AGAIN FAILS TO LEAD ON SECRET HUSH MONEY

DES MOINES – State Sen. Jack Hatch, candidate for Governor, released the following statement on the unfolding executive branch secret hush money payments issue Monday:

“This Governor continues to deny and deflect instead of leading, which is what Governors are hired to do. Iowans are getting tired of the same old responses from this Governor. Like Gov. Chris Christie of New Jersey and Gov. Scott Walker of Wisconsin, this Governor’s go-to response is ‘I didn’t know.’ That’s getting old.

Iowans know there is a toxic pattern of wrongdoing, lack of oversight and secrecy in this administration and it simply has to end.

The buck stops with the Governor. An executive order is a wholly inadequate fig leaf. A full investigation is needed. I can tell you, in my administration, if these kinds of settlements were approved without my knowledge, I would have terminated some people today. That’s what leadership looks like, and I look forward to restoring the kind of leadership in the Governor’s office that Iowans have come to expect and are not getting from this Governor.”

For more information on the Branstad administration’s pattern of repeated wrongdoing, please visit www.jackhatch.com/bracket/ .

Meanwhile, State Senator Tom Courtney denounced what he called “New Jersey style politics” and expressed skepticism that the governor would not know about payouts totaling hundreds of thousands of dollars.

Iowa House Republican Kevin Koester was totally satisfied with the governor’s response to the matter.

House Government Oversight Committee Chairman Kevin Koester said Monday he was impressed by Branstads response to the revelations of the secret settlements and the executive order.

Existing law and the executive order probably address the issue, meaning no further legislation will be necessary Koester, R-Ankeny, said.

But Koester said his committee would reserve the right to investigate the matter further and call in department leaders to testify if the governors office doesnt provide all the information lawmakers want regarding the matter.

It appears that the executive branch has already completed the kind of research that we would expect to have, so we wouldnt duplicate that, he said.

How laughable for anyone to claim this controversy has been exhaustively investigated.

  • Cronyism, nepotism and greed

    Cronyism, nepotism and greed make up the philosophy, the strategy, the tactics and the overall vision of the Branstad administration. It’s an overly simplistic statement of the reality of the true guiding force of Terry Branstad himself.

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