Date:
10/19/2017
Subject:
Jason Clayworth/Iowa Public Information Board - Report & Jurisdictional Decline Order
Opinion:
MEMO TO THE IOWA PUBLIC INFORMATION BOARD
RE: FORMAL COMPLAINTS 17FC:0060 AND 17FC:0061
October 12, 2017
On August 23, 2017, Jason Clayworth filed complaint 17FC:0060 against the Iowa Department of Human Services (DHS), alleging that DHS violated Iowa Code chapter 22 by failing to release certain records.
On August 25, 2017, Jason Clayworth filed complaint 17FC:0061 against the Iowa Public Information Board (IPIB) alleging that the IPIB violated Iowa Code chapter 21 by improperly conducting a closed session during an IPIB meeting on August 25, 2017.
Both complaints are within the jurisdiction of the IPIB pursuant to Iowa Code chapter 23.
Section 23.5 of the Iowa Code outlines the election of remedies available to any person seeking to enforce the provisions of Iowa Code chapters 21 and 22:
23.5 Election of remedies.
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An aggrieved person, any taxpayer to or citizen of this state, the attorney general, or any county attorney may seek enforcement of the requirements of chapters 21 and 22 by electing either to file an action pursuant to section 17A.19, 21.6, or 22.10, whichever is applicable, or in the alternative, to file a timely complaint with the board.
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If more than one person seeks enforcement of chapter 21 or 22 with respect to the same incident involving an alleged violation, and one or more of such persons elects to do so by filing an action under section 17A.19, 21.6, or 22.10, and one or more of such persons elects to do so by filing a timely complaint with the board, the court in which the action was filed shall stay the action pending resolution of the complaint with the board, authorizing the complainant to file a complaint with respect to the same incident with the board without regard to the timeliness of the filing of the complaint at the time the action in court is stayed.
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If a person files an action pursuant to section 22.8 seeking to enjoin the inspection of a public record, the respondent or person requesting access to the record which is the subject of the request for injunction may remove the proceeding to the board for its determination by filing, within thirty days of the commencement of the judicial proceeding, a complaint with the board alleging a violation of chapter 22 in regard to the same matter.
As noted in section 23.5(1), an alleged violation can be pursued by either filing a complaint with the IPIB or by filing an action in district court. Iowa Code chapter 17A outlines the procedure to be used to proceed administratively. Iowa Code section 17A.19 notes: “However, nothing in this chapter shall abridge or deny to any person or party who is aggrieved or adversely affected by any agency action the right to seek relief from such action in the courts.”
The Iowa Ethics Board was asked to provide an opinion on the ethics concern that might arise if the IPIB accepted this complaint and proceeded as outlined by Chapter 23 and Iowa Rules chapter 497. Megan Tooker, executive director for the Board, advised as follows:
Director Johnson,
The purpose of this email is to memorialize our recent telephone conversations. You advised me that Des Moines Register reporter Jason Clayworth filed a complaint with IPIB alleging IPIB violated open meeting laws. You also advised me that Mr. Clayworth filed a complaint with IPIB against DHS. Finally, you advised me that Clark Kauffman, a Des Moines Register reporter, filed a complaint with IPIB against a county official. You asked me whether IPIB should abstain from handling any of these complaints.
Iowa Code section 68B.2A addresses conflicts involving "outside employment and activities." It requires a government official or employee to refrain from taking any official action or performing any official duty on an outside employment or activity that is subject to his or her official control. Moreover, while the Ethics Board does not enforce common law, Iowa Code section 68B.2A(3) leaves the common law conflicts-of-interest rules intact. For example, in Iowa Farm Bureau Federation v. Environmental Protection Commission, 850 N.W.2d 403, 414 (Iowa 2014), the Supreme Court of Iowa stated:
"Conflict-of-interest rules, whether common law or statutory, are based on moral principles and public policy. They demand complete loyalty to the public and seek to avoid subjecting a public servant to the difficult, and often insoluble, task of deciding between public duty and private advantage. It is not necessary that this advantage be a financial one[.]” (internal citations and quotations omitted).
Mr. Clayworth has filed a complaint against IPIB alleging an open meeting violation. IPIB board members could be found personally liable and could be personally ordered to pay a civil penalty if the board is found to have violated Iowa's open meetings laws. Because the complaint could impact the board members personally and individually, I believe you should treat the underlying allegations in the complaint as an "outside activity" under section 68B.2A and therefore the Board members should refrain from taking any official action or performing any official duty with respect to this complaint.
Secondly, I am of the opinion that IPIB should refrain from taking any official action or performing any official duty with respect to the complaint Mr. Clayworth filed against DHS based on a the potential appearance of impropriety. While Mr. Clayworth's complaint against IPIB is pending, I think it would be wise for the board to abstain from taking any official action or performing any official duty with respect to any matter involving Mr. Clayworth in order to preserve the public's confidence in the board and avoid any insinuation that the board ruled on Mr. Clayworth's complaint against DHS in order to retaliate or curry favor with him.
Finally, I am of the opinion that IPIB need not abstain from taking any official action or performing any official duty with respect to the complaint filed by Mr. Kauffman. IPIB is an independent agency with a limited budget and it would be unduly onerous for IPIB to abstain simply because Mr. Clayworth and Mr. Kauffman share an employer.
The Iowa Attorney General filed comments on the issue (Exhibit 1). The Attorney General suggests that the IPIB could release additional information from the closed session in an effort to resolve one of the complaints. The comments do not address whether it is ethical and appropriate for the IPIB to take formal action on either complaint.
Iowa Code section 17A.11 allows for the disqualification and substitution of a presiding officer, such as the IPIB, when there is a showing of “bias, prejudice, interest, or any other cause provided in this chapter or for which a judge is or may be disqualified.” (17A.11(2)) This section, however, applies when a contested case has been filed pursuant to Chapter 17A.
At this time, neither complaint has been referred for the filing of a contested case. The IPIB, or staff, first has to determine whether to accept the complaint under Iowa Code section 23.8. Then the IPIB attempts to resolve the complaint informally as directed by Iowa Code section 23.9. If this is not successful, then the IPIB staff conducts a formal investigation and files a probable cause report with the IPIB board pursuant to Iowa Code section 23.10.
Neither Iowa Code chapter 23 nor the IPIB administrative rules address this issue.
Jason Clayworth asked to substitute a co-worker in 17FC:0060 to avoid dismissal of that case. The Ethics Board suggested that he withdraw his complaint and a co-worker could then file a new complaint.
Based upon the recommendation of the Ethics Board, I would recommend that the IPIB decline to accept either complaint by issuing the following order:
“The Iowa Public Information Board declines jurisdiction over formal complaints 17FC:0060 and 17FC:0061 due to the perception that an ethical issue, that is, a conflict of interest, could exist. This decision is not based upon the merits of either complaint. Therefore, the complainant is entitled to exercise his right to file directly in district court pursuant to Iowa Code sections 17A.19, 21.6, and 23.5.”
Margaret E. Johnson, J.D.
Executive Director
Iowa Public Information Board
(NOTE: Director Tooker’s opinion references a formal complaint filed by another reporter at the Des Moines Register. That complaint was accepted by the IPIB on May 9, 2017, and should not be affected.)
The Iowa Public Information Board
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In re the Matter of: Jason Clayworth, Complainant And Concerning: Iowa Public Information Board, Respondent |
Case Number: 17FC:0061 Order |
This matter comes before the Iowa Public Information Board (IPIB) this 19th day of October, 2017, to consider a formal complaint filed by Jason Clayworth on August 25, 2017.
The complaint alleges that the Iowa Public Information Board violated Iowa Code chapter 21 by improperly conducting a closed session at an open meeting on August 25, 2017.
The IPIB finds that it would be improper and unethical for the IPIB to proceed further with a formal complaint filed against the IPIB.
IT IS THEREFORE ORDERED:
The Iowa Public Information Board declines jurisdiction over formal complaint 17FC:0061 due to the perception that an ethical issue, that is, a conflict of interest, could exist. This decision is not based upon the merits of this complaint. Therefore, the complainant is entitled to exercise his right to file directly in district court pursuant to Iowa Code sections 17A.19, 21.6, and 23.5.
So ordered this 19th day of October, 2017.
_____________________________________
IPIB Chair
cc:
IPIB
Jason Clayworth