The Iowa Supreme Court heard oral arguments today as the state seeks to remove the governor and her former spokesperson from a lawsuit by the former communications director for the Iowa Department of Public Health.
Polly Carver-Kimm says she was forced to resign after fulfilling public information requests to reporters during the pandemic that the governor thought reflected poorly on her administration. The attorney for the state, Samuel Langholz, argued the governor should not be part of the lawsuit.
“The claims fail as a matter of law against the governor and the governor’s communications director because they did not employ Miss Carver-Kimm, and they didn’t have the legal authority to discharge her and the claim shouldn’t extend out to indirect influence over a discharge decision of another.” A justice asked Langholz if that would still be the case if there were direct evidence that the governor ordered the firing.
“Even under those set of facts with the governor explicitly directing her director to fire an employee, she still is not the one who engaged in that. The director could say, ‘No.’ The director might be removed if the governor was displeased with that,” Langholz says. On two other points, Langholz argued the state should have immunity under a new law that was passed after the firing, and that Carver-Kimm should not be covered by the whistleblower act.
Carver-Kimm’s attorney, Thomas Duff, focused on the immunity and says the case should not be covered by the new law.
“In this case — the date of termination, which was July of 2020 — so once her cause of action accrued, her rights vested, and taking away that right, by retroactively applying a statute, according to the Thorpe case, is a violation of both federal and state due process,” Duff says.
Justices questioned Duff about why whistleblower protection should apply to the case. “Because the employee is the person who is the gatekeeper and is going to respond, and that is the person who if there is pressure being put on him by their supervisors to not disclose what should be lawfully disclosed or to delay the disclosure of information that has a harm, not only to the person that is the gatekeeper, but a harm to the to the public at large,” he says. Duff says Carver-Kimm’s duties all the way up to the pandemic were to answer inquiries from the media, and she was forced to resign once the governor thought that information was putting her in a bad light. The Justices will rule at a later date.
Polly-Carver Kimm is the wife of Todd Kimm, who is an employee of Radio Iowa.