A former administrative law judge who testified about political interference at Iowa Workforce Development is facing a felony fraud charge after staff in the Polk County Attorney’s office failed to do their homework.
Ryan Foley reported Thursday for the Associated Press that former Administrative Law Judge Susan Ackerman is charged with making fraudulent submissions, having “falsely certified that her married daughter was single so that she could receive state health insurance in 2013 and 2014.” When the Iowa Supreme Court Attorney Disciplinary Board reviewed an Iowa Workforce Development complaint citing the same conduct a year and a half ago, the board determined “that Ackerman didn’t commit an ethical violation and declined to take action against her law license,” Foley noted.
So why is she facing criminal prosecution now? Because no one in the Polk County Attorney’s office researched this case before filing charges.
Ackerman’s been in the news several times before. She was among six administrative law judges who appeared before the Iowa Senate Government Oversight Committee in August 2014. (See video enclosed below.) Their testimony about a hostile work environment and political pressure from Iowa Workforce Development Director Teresa Wahlert informed Democratic reform proposals to “take political influence out of the judicial process” at the state agency.
Ackerman sued Iowa Workforce Development and several top administrators in early 2015, “alleging she was suspended in retaliation for criticizing management” during that Senate hearing. Shortly after filing suit, she was fired. The Iowa Public Employment Relations Board later suspended the arbitrator who upheld Ackerman’s dismissal, citing “substantive inaccuracies and omissions” in his ruling.
The public employee union AFSCME is fighting Ackerman’s termination and was in Polk County Distrist Court last Friday in connection with that case.
A few minutes of online searching would have revealed all of this background. Yet Polk County Attorney John Sarcone was caught flat-footed when Foley sought comment on the criminal case.
Division of Criminal Investigation agents initiated the fraud investigation at Workforce Development’s request. The decision to charge Ackerman was made by the office of Polk County Attorney John Sarcone, a Democrat who said he was unaware that Ackerman had spoken out against [Republican Governor Terry] Branstad.
Sarcone said that an assistant county prosecutor made the charging decision based on DCI’s investigative materials and politics didn’t enter into it.
“If we don’t feel we can prove it beyond a reasonable doubt, we’ll get rid of it. At the present time, there appears to be probable cause to go forward,” he said.
DCI spokesman Alex Murphy added that “politics does not play a role in this or any other criminal investigation.”
Sure, politics didn’t play a role. It was completely normal for a state agency to request that DCI investigate fraud after the Iowa Supreme Court Attorney Disciplinary Board dismissed Iowa Workforce Development’s complaint over the same actions by Ackerman. Meanwhile, Foley’s story mentions, Wahlert’s agency did not even discipline, let alone terminate, an administrative law judge who lied under oath at the August 2014 Iowa Senate hearing.
The timing of DCI’s referral should have been a red flag to the assistant Polk County prosecutor. How often do minor administrative errors lead to a felony charge two years later?
That the agency Ackerman is suing initiated the investigation against her should have been a red flag to the assistant Polk County prosecutor. But that would require someone in Sarcone’s office to have a clue that the defendant had reported official wrongdoing and is one of three people with pending lawsuits against Iowa Workforce Development.
To all appearances, Sarcone’s assistant rubber-stamped a state agency’s effort to use the DCI as an instrument of revenge against a former employee. What’s the point of prosecutorial discretion if a county attorney won’t do basic research?
Abusing police powers is one of the most effective ways to punish dissenters and deter whistleblowers. Prosecutors need to ask tough questions so as not to become pawns.
UPDATE: Foley followed up on December 26 with a report highlighting the suspicious timing of this case.
Former Administrative Law Judge Susan Ackerman joined her union, AFSCME Iowa Council 61, in a Polk County courtroom on Dec. 16 as the union sought to overturn an error-riddled arbitration decision that upheld her termination.
Four days later, Ackerman was told a warrant had been issued charging her with insurance fraud, according to her daughter, attorney Jennifer Koockogey. Ackerman was told to report to jail in Des Moines by 5 a.m. the next morning or face arrest, Koockogey said.
“Every time she takes a step against the state, they retaliate,” Koockogey said. […]
AFSCME separately challenged her firing under its collective bargaining agreement, arguing Ackerman was treated more harshly than other workers. One employee was suspended, but not prosecuted, for adding his unmarried partner and her daughter to his insurance. Another Workforce Development judge wasn’t disciplined after giving false testimony to lawmakers under oath.
Sarcone still hasn’t explained how his staff failed to realize Ackerman was a whistleblower who had just appeared in court fighting her dismissal. The DCI still hasn’t explained why they recommended prosecuting Ackerman, even though the body that disciplines Iowa attorneys had already concluded her conduct was not an ethical violation. (Ackerman asked for and received permission from a state human resources official to add her not-yet-divorced daughter to her health insurance policy.)
JANUARY UPDATE: Retired administrative law judge Bonny Hendricksmeyer provided this statement, also submitted as a letter to the editor of the Des Moines Register, on January 6:
”The criminal charges against former Administrative Law Judge Susan Ackerman appear to be blatant retribution against her as a whistle blower as well as punishment for her civil actions and public criticism of Iowa Workforce Development. The use of the criminal justice system to obtain advantage in civil cases is not just reprehensible and immoral, it is illegal and unethical. Serious allegations of abuse of the criminal justice system demand an investigation. I am personally calling on the Attorney General Tom Miller and Polk County Attorney John Sarcone to investigate IWD to determine whether IWD is using the criminal system to chill the pursuit of civil remedies pursued by employees. Are there other incidents? Have others been subjected to the same abusive legal skullduggery. This demand for investigation begs the question, are Miller and Sarcone supporting this malicious use of the criminal justice system to gain advantage in civil cases? A special prosecutor must be appointed.”
Hendricksmeyer appeared at the same August 2014 Iowa Senate hearings as Ackerman to testify about political interference in Iowa Workforce Development.
I’m not aware of a mechanism for appointing a special prosecutor with broad investigative authority in Iowa. The section of Iowa Code called “special prosecutor” appears to refer to the process of removing a county attorney from office.
LATER UPDATE: Sarcone has declined to answer specific questions about the decision to charge Ackerman or its timing, but he did comment in reference to Hendricksmeyer’s accusation, “We make decisions in this office based on the facts and the applicable law and not on anything else. We will do our talking about this case in the courtroom.”
Video from August 26, 2014 hearings in the Iowa Senate Government Oversight Committee. Ackerman’s testimony begins around the 5:23:00 mark. In her opening statement, she criticized Governor Branstad for standing behind Wahlert without knowing all the facts about how Iowa Workforce Development was being managed.