Update: Carver-Kimm amended her lawsuit in June 2021 to include the two claims originally filed with the State Appeal Board. She amended it again in August 2021 to add more plaintiffs and remove the third count related to First Amendment claims. You can read the latest version of the petition here. The case is scheduled for trial in the summer of 2022. Original post follows.
The Iowa Department of Public Health's longtime communications director Polly Carver-Kimm filed suit on September 2, claiming she was wrongfully terminated, in violation of the state's whistleblower law. Stephen Gruber-Miller first reported on the lawsuit for the Des Moines Register. I've enclosed below the District Court filing and Carver-Kimm's parallel claims filed with the State Appeal Board.
Carver-Kimm was the lead media contact at IDPH for thirteen years before she was told to resign or be fired in mid-July. Her attorney, Tom Duff, has represented other well-known Iowans who have sued the state on whistleblower claims or alleging wrongful termination, including former criminal investigator Larry Hedlund (who had caught the SUV carrying then Governor Terry Branstad speeding) and former Department of Human Services Director Jerry Foxhoven.
The day she was ousted, Carver-Kimm told the Des Moines Register's Tony Leys she was "embarrassed and saddened by the way the media has been treated during COVID." She asserted that she was stripped of her duties and eventually removed for being too open with journalists seeking information about the pandemic.
Her court filing and an accompanying news release from Duff's office are more specific about alleged violations of Iowa's open records law.
Carver-Kimm is suing Governor Kim Reynolds and the governor's communications director Pat Garrett as individuals, as well as suing the state.
The news release from Duff's office asserted that Carver-Kimm's "deeply held belief that public information should indeed be made public ran head-on into the Reynolds administration’s desire to stifle the free flow of information as a means of damage control."
Her District Court filing alleges violations of Iowa's whistleblower law, while the "claims before the State Appeal Board allege that she was illegally terminated because of her persistent efforts to comply with Iowa’s Open Records law and that her firing violates public policy and runs afoul of her free speech rights."
By Carver-Kimm's account, she was stripped of responsibility for answering journalists' questions related to COVID-19 during the earliest days of the pandemic. That is consistent with my experience and that of other reporters, who had long dealt with Carver-Kimm when seeking information from IDPH but found our questions about the pandemic response were diverted to Amy McCoy.
Carver-Kimm asserts that other duties were taken away as the pandemic progressed. Records I've obtained on overtime pay for IDPH employees support that claim. Carver-Kimm received no overtime pay after April, while others involved with COVID-19 matters continued to draw large amounts.
The petition describes other events Carver-Kimm witnessed, which deprived the media of information to which they were entitled. For thirteen years, the governor's office was "never involved" in responding to public records requests to IDPH. That changed during the pandemic.
On at least one occasion, Pat Garrett told Polly to “hold” the production of records already approved by Ms. Adams [the assistant attorney general who reviewed and redacted IDPH records prior to release]. The record in question was a list of questions to be used as part of the Test Iowa website evaluation of whether someone needed to be tested.
When the governor activated the state's Emergency Command Center (ECC) in the early days of the pandemic, some officials began using ECC email addresses rather than their regular state-issued emails when communicating about COVID-19.
In early April 2020, Polly received a request for emails from specific IDPH email addresses relating to COVID-19. The email addresses specified were the state’s normal email addresses, not the ECC email addresses.
16. Polly asked Assistant Attorney General Adams whether the ECC emails should be produced. Ms. Adams eventually confirmed that the ECC emails should be included in response to this specific request. Although similar requests were later made by other news agencies, the ECC emails were never again searched and responsive documents in the ECC emails were never again produced. Polly repeatedly inquired of Ms. Adams via email regarding whether the ECC emails should be produced but never received a response.
Carver-Kimm alleges that superiors retaliated against her on several occasions. For instance:
During the week of April 21, 2020, Polly informed her supervisors that a news reporter had brought to her attention the unsanitary working conditions and lack of social distancing at the SEOC [State Emergency Operations Center]. Multiple persons, including [IDPH] Director [Gerd] Clabaugh, demanded the name of the journalist who made this observation. When Polly refused to give the name of the journalist, more assigned job duties were taken from her including being in charge of social media and working with the counties and local government entities.
The court filing says that Carver-Kimm provided records to Iowa Public Radio, The New Yorker, and USA Today, which informed coverage in The New Yorker that was critical of Iowa's COVID-19 response. Upon learning that Carver-Kimm had released the documents to the magazine, IDPH Deputy Director Sarah Reisetter (an attorney by training) questioned whether doing so “was even legal.” More dominoes fell soon after.
23. On June 4, 2020, Polly was no longer allowed to respond to any open records requests, including those dealing with COVID-19.
24. On June 15, 2020, the New Yorker published an article critical of the company running “Test Iowa” utilizing the previously released emails. On June 17, 2020, Polly was no longer allowed to respond to any media inquiries involving COVID-19 or any other infectious disease.
Carver-Kimm was terminated days after Leys reported for the Des Moines Register on a 25 percent increase in abortions performed in Iowa, citing pregnancy termination statistics that Carver-Kimm had provided. Those figures were "publicly available information routinely produced in the past."
Speaking on behalf of IDPH, McCoy declined comment on the lawsuit.
Carver-Kimm's tort claims filed with the State Appeal Board seek $2 million in damages from Reynolds and Garrett and $3 million in damages from the state.
UPDATE: Iowa Public Radio reported that Reynolds' office released a statement from chief of staff Sara Craig Gongol on September 3: "This lawsuit is without merit, and we will be working with the Iowa Attorney General's Office to respond in court."
LATER UPDATE: Carver-Kimm and her attorney held a news conference on September 3, which the Cedar Rapids Gazette posted on YouTube. In her opening remarks, Carver-Kimm said that in thirteen years with the department, "I never had a negative job review, and I was never removed from a project. That all changed just days after the governor's office became involved." The only explanation she received for the systematic reduction in her job duties was "that I was not a team player, and that I was causing friction with the governor's staff."
Carver-Kimm said that while she was told she was terminated due to a restructuring, at the time of her firing "there were five people doing the job I used to do by myself. That's not restructuring; that's a systematic and deliberate effort to thwart open communication."
Appendix: State Appeal Board claim against Governor Kim Reynolds and the governor's communications director Pat Garrett:
State Appeal Board claim against the state of Iowa:
September 3 news release:
Iowans deserve to know the truth about why the Reynolds administration fired Polly Carver-Kimm, the Communications Director for the Iowa Department of Public Health, in the midst of a statewide pandemic.
As a former journalist, Carver-Kimm understands the vital role the news media plays in holding government accountable and providing Iowans with timely and accurate information so they can make informed decisions. Her deeply held belief that public information should indeed be made public ran head-on into the Reynolds administration’s desire to stifle the free flow of information as a means of damage control.
Carver-Kimm was hired in 2007 by the Iowa Department of Public Health (IDPH). Throughout her 13-year tenure with IDPH she worked under both Democratic and Republican administrations, responsible for all IDPH communications including public information requests, and later COVID-19 related communications.
Beginning in March 2020, the process for complying with open records requests and providing information to the public was changed. Suddenly, all press releases and media-related inquiries were to go through the Governor’s office before being made public. Documents previously approved for release were withheld and email communications from the Emergency Command Center relating to COVID-19 were not produced. Carver-Kimm was questioned and criticized for disclosing information that was routinely made available under prior administrations.
From March until her unlawful termination on July 15, 2020, Carver-Kimm was systematically stripped of nearly all her duties, specifically the following:
March 12: Her responsibility for responding to all media-related inquiries related to COVID-19 were given to Sarah Reisetter, Deputy Director of IDPH
April 12: She was no longer allowed to update the IDPH website
June 4: She was no longer allowed to respond to any open records requests, including those dealing with COVID-19
June 17: She was no longer allowed to respond to any media inquiries involving not just COVID-19, but any other infectious disease
July 15: Polly is terminated due to “restructuring.”
Carver-Kimm has filed suit in Polk County District Court alleging violation of Iowa’s whistleblower law. She has also filed claims with the State Appeal Board against the State of Iowa, Governor Kim Reynolds, and Communications Director Pat Garrett. The claims before the State Appeal Board allege that she was illegally terminated because of her persistent efforts to comply with Iowa’s Open Records law and that her firing violates public policy and runs afoul of her free speech rights. Copies of the filings are available at www.tdufflaw.com
Top image: Pat Garrett (foreground, checking phone) and Governor Kim Reynolds at an August 18 fundraiser for Iowa House candidate Eddie Andrews in Johnston. Cropped from a photo posted on Facebook by Connie Schmett.