24FC:0077 Kyle Ocker/Mahaska County Sheriff’s Office - Probable Cause Report and Order

Date:
02/20/2025

Subject: 
Kyle Ocker/Mahaska County Sheriff’s Office - Probable Cause Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Probable Cause Report: 

On September 9, 2024, Kyle Ocker filed formal complaint 24FC:0077, alleging the Mahaska County Sheriff’s Office (Sheriff’s Office) violated Iowa Code Chapter 22.

The IPIB accepted this Complaint on October 17, 2024.

Facts

On May 16, 2024, a citizen complaint was filed with the Sheriff’s Office against a deputy sheriff. An internal investigation was initiation, which confirmed the deputy had violated multiple standards of conduct. On May 29, 2024, the deputy resigned in lieu of termination from the Sheriff’s Office. This resignation was accepted the same day.

On June 27, 2024, Kyle Ocker, editor for the Oskaloosa Herald, submitted a Chapter 22 request with the Sheriff’s Office, seeking five categories of records, including the reasons and rationale for the deputy’s resignation in lieu of termination. The request was promptly acknowledged. Approximately three weeks later, the Sheriff’s Office responded to the records request, properly explaining which categories did not have responsive records and disclosing other records. In response to the “reasons and rationale” request, the Sheriff confirmed there had been a formal investigation and the deputy had resigned in lieu of termination prior to a final ruling.

On September 9, 2024, Ocker filed a formal complaint with the IPIB, alleging further disclosure was required for the “documented reasons and rationale” for the deputy’s resignation pursuant to Iowa Code § 22.7(11)(a)(5).

On September 13, 2024, the Sheriff’s Office provided additional disclosures to Ocker, including a document labeled “Attachment 04.” Attachment 04 read as follows:

On May 16, 2024 I became aware of a citizen complaint regarding your on-duty activity. On the same date, I initiate [sic] a formal administrative investigation into this allegation which was assisted by an outside agency. The results of this investigation confirmed that you violated multiple standards of conduct, specifically those contained in Iowa Code 341A.11(1), (2), (4), and (7), the Mahaska County Employee Handbook grounds for discipline specified in (2), (4), (10), and (14), and the Mahaska County Sheriff’s Office policies 1-3(2), 1-3(11), 1-3(22), and 1-4(V). Prior to the [sic] outlining the findings of this investigation with you, on May 29 you tendered your resignation which I accepted before final disciplinary action was taken.

During the course of IPIB’s fact finding, the Sheriff’s Office shared additional documents clarifying the policies described in Attachment 04. From the Mahaska County Handbook, the identified violations included 1) violation of any lawful and reasonable County or departmental policy (#2), 2) absence from duty without permission, proper notice, or satisfactory reason (#4), 3) incompetence, ineffectiveness, inefficiency, or wastefulness in the performance of assigned duties (#10), and 4) actions, including the use of social media, that embarrass, disparage, or negatively impact the image and reputation of Mahaska County (#14). The documents also provided that Sanders had violated policies relating to 1) the appropriation of lost, found, or stolen property, the conversion of county property, and the conversion of property held by the Sheriff’s Office as evidence, 2) absence without leave, 3) failure to properly patrol Mahaska County, unauthorized absence from assignment, or failure to respond to a radio call, and 4) “unauthorized persons in patrol cars.”

On October 17, 2024, IPIB accepted the case for further review. In its acceptance order, IPIB relied on Advisory Opinion AO18:0008, which interprets what information is covered by “documented reasons and rationale for the resignation in lieu of termination” as the phrase is used in Iowa Code § 22.7(11)(a)(5). Because the Sheriff’s Office did not directly address the behavior or incident which served as the basis for their adverse employment decision, IPIB accepted on the grounds that additional disclosure was needed.

IPIB then worked with the Sheriff’s Office to prepare a new record to meet the requirements set by AO18:0008. The Sheriff’s Office produced an amended version of the record previously released as “Attachment 04,” which read as follows (new substantive material in bold):

On May 16, 2024, I became aware of a citizen complaint regarding your on-duty activity. The nature of this complaint was that you were involved in a 3 ½ year ongoing personal relationship with a citizen while on duty in Mahaska County. On the same date, I initiated a formal administrative investigation into this allegation which was assisted by an outside agency. The results of this investigation confirmed that you violated multiple stands of conduct, specifically those contained in Iowa Code 341A.11(1), (2), (4), and (7), the Mahaska County Employee Handbook grounds for discipline specified in (2), (4), (10), and (14), and the Mahaska County Sheriff’s Office policies 1-3(2), 1-3(11), 1-3(22), and 1-4(V). Prior to outlining the findings of this investigation with you, on May 29 you tendered your resignation which I accepted before final disciplinary action was taken.

By agreement of the parties, the former deputy who was the subject of the record was given two weeks to choose whether or not to seek a court injunction against disclosure. On January 14, 2024, after the deputy declined to take any action, IPIB relayed the new record to Ocker.

Kyle Ocker, on behalf of the Oskaloosa Herald, disputes the amended disclosure meets the requirement to provide the “documented reasons and rationale” for the adverse employment decision.  Specifically, Ocker argues disclsoing a “3 ½ year ongoing personal relationship with a citizen while on duty” is both “broad and ambiguous,” as it leaves the door open for multiple interpretations (i.e. it is unclear whether the relationship is platonic or sexual, and it is similarly unclear whether the cause for termination was the relationship itself, neglected duties as a result of the relationship, or preferential treatment given to the citizen by virtue of the relationship). Ocker also suggests the disclosure should provide more information about how the conduct could have gone undetected for three-and-a-half years and more detail about the alleged use of “lost, found, or stolen property” in possession of the Sheriff’s Office, which was also cited amongst the deputy’s several policy violations.

Applicable Law

“The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:

Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. However, the following information relating to such individuals contained in personnel records shall be public records, except as otherwise provided in section 80G.3 [a provision protecting the confidentiality of personnel information for undercover law enforcement officers]:

…

The fact that the individual resigned in lieu of termination, was discharged, or was demoted as the result of a disciplinary action, and the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion.” Iowa Code § 22.7(11)(a)(5).

Analysis

Iowa Code § 22.7(11)(a) provides a broad category of confidentiality for “personal information in confidential personnel files relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies.” The Iowa Supreme Court has ruled that this is intended to be a categorical exemption, for which the legislature “has performed its own balancing and made the policy choice to protect such records categorically.” Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 234 (Iowa 2019). Thus, unless information contained in a record falls into one of the five exempted categories set forth by Iowa Code § 22.7(11)(a)(1) – (5), a government body is entitled to assert confidentiality to withhold it.

Under normal circumstances, disciplinary records for individual employees would be wholly covered by this categorical exemption. ACLU Foundation of Iowa, Inc. v. Recs. Custodian, Atl. Cmty. Sch. Dist., 818 N.W.2d 231, 235–36 (Iowa 2012) (finding disciplinary records and related information for two employees involved in a “locker room strip search” were entitled to confidentiality as personnel records); see also Des Moines Indep. Cmty. Sch. Dist. Pub. Recs. v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 670 (Iowa 1992) (finding job performance evaluations and documents generated by an internal investigating committee were “essentially in-house, job performance documents exempt from disclosure”).[1]

Despite this general protection, Iowa Code § 22.7(11)(a)(5) provides that information pertaining to “[t]he fact that [an employee] resigned in lieu of termination” and “the documented reasons and rationale for the resignation in lieu of termination” are non-confidential public records. In other words, the fact of the deputy’s resignation in lieu of termination partially lifted confidentiality protections for the investigation files which justified the adverse employment decision, but only to the extent of the fact itself and the “documented reasons and rationale.”

In Advisory Opinion 18AO:0008, IPIB interpreted “reasons and rationale” to mean “sufficient factual information to support and substantiate the action taken.” 18AO:0008, Definition of “Documented Reasons and Rationale.” As an alternative to the release of redacted records (e.g. investigation records created prior to the adverse employment decision), IPIB recommended disclosure requirements could be met through the drafting of a new document which provides the information required to be released in Iowa Code § 22.7(11)(a)(5). Following the guidelines set forth in 18AO:0008, such a document would need to, at a minimum, 1) disclose the fact that an employee resigned in lieu of termination, was discharged, or was demoted as the result of disciplinary action, 2) saw which law, rule, or policy, if any, they believe the employee violated, and 3) provide at least one sentence about the behavior or incident that triggered the action, which must include 4) details, such as the date(s) of alleged behavior, location, or how it was discovered. Id. One-word descriptions, such as “work rules” or “performance,” would be insufficient. Id.

In its acceptance, IPIB found the first and second requirements were met, as it was clearly stated the deputy resigned in lieu of termination, and Attachment 04 provided a list of policies violated from three different sources. IPIB also found that the fourth point was likely met, from the explanation of how the conduct was discovered (a citizen complaint), a location (on-duty in Mahaska County), and a date (May 16, 2024). The only requirement unmet from 18AO:0008 was the need for “at least one sentence about the behavior or incident that triggered the action.”

The additional sentence in the amended disclosure explains the “behavior or incident” which triggered the investigation and compelled the deputy to resign in lieu of termination was a “3 ½ year ongoing personal relationship with a citizen while on duty.” Combined with cited policies and highlighted violations already provided by the Sheriff’s Office, including mention of absence without leave, negligence of duty, and “unauthorized persons in patrol cars,” what has been provided would appear sufficient to meet the requirement set by 18AO:0008.

The complainant contends the term “reasons and rationale,” as used in Iowa Code § 22.7(11)(a)(5), should be read to require additional disclosure, including clarification on the specific nature of the “ongoing personal relationship,” the reasons for the government’s failure to identify the misconduct earlier, whether the deputy’s responses to emergency calls were delayed as a result, and the details of the alleged violation of the Sheriff’s Office policy 1-3(22), dealing with the misappropriation of property belonging to or held by the government.

While these disclosures would arguably be in the public interest, they are not required under the standard established in 18AO:0008. The Mahaska respondents have provided “at least one sentence about the behavior or action” which led to the deputy’s resignation, which is well above the sort of “one-word description” cited as insufficient by IPIB. Disclosing the existence of a long-term unauthorized relationship with a citizen while on duty is sufficient to “support and substantiate” the action taken. Where the legislature has provided a categorical exemption for personnel files and this exemption would wholly protect the details of the investigation if not for the subsequent fact of resignation in lieu of termination, IPIB does not interpret “reasons and rationale” to require the additional disclosures the complainant seeks.

Because the respondents have now met their disclosure requirements under Iowa Code § 22.7(11)(a)(5), based on IPIB’s interpretation in 18AO:0008, there is no longer any remaining violation of Chapter 22.

IPIB Action

The Board may take the following actions upon receipt of a probable cause report: 

a. Redirect the matter for further investigation;

b. Dismiss the matter for lack of probable cause to believe a violation has occurred;

c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.

Iowa Admin. Code r. 497-2.2(4).

Recommendation

It is recommended the Board dismiss the matter for lack of probable cause to believe a violation has occurred. Through the informal resolution process, the respondents have now satisfied the disclosure requirements of Iowa Code § 22.7(11)(a)(5), and further disclosure is not required.

By the IPIB Executive Director

Erika Eckley, J.D.

[1] See also 15FC:0060, Ryan Foley/Iowa Department of Public Safety (finding Iowa Code § 22.7(11) applied to the records of an internal investigation into three DPS employees placed on administrative leave who were ultimately exonerated and returned to their previous positions).

Under Iowa Admin. Code r. 497-2.2(4) the Board takes the following action: 

• a. Redirect the matter for further investigation;
• b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
• c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
• d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.

By the Board Chair

___________________________________

Monica McHugh