Ex-Iowa prosecutor get second chance to show release of firing letter was illegal

A former political candidate will get a second chance to argue that a county official wrongly released his employment records to sabotage his campaign.

The Iowa Court of Appeals ruled last week in the case of Stephen Swanson, who worked as a prosecutor in the Wapello County Attorney's Office from 2010 to 2016. In 2014 and again in 2018, Swanson ran unsuccessfully as the Republican candidate for Boone County attorney against Democratic then-incumbent Dan Kolacia.

Prior to the 2018 election, the Des Moines Register ran an article disclosing details from a termination letter then-Wapello County Attorney Gary Oldenburger prepared for Swanson in 2016, although Swanson chose to resign in lieu of being fired. Shortly after the article's publication, Swanson sued Oldenburger and Wapello County, alleging that his former employer had defamed him, blacklisted him and violated state law by disclosing confidential personnel records. A district court sided with the county on all counts, and Swanson appealed.

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Was prosecutor fired or did he quit?

According to court filings, Oldenburger and his predecessor reprimanded and counseled Swanson repeatedly by from 2012 to 2016 for missing essential deadlines in cases he was prosecuting. Criminal defendants have a constitutional right to a speedy trial, and prosecutions can be dismissed if prosecutors are not prepared to try them within the statutory deadlines to do so.

In the 2016 termination notice, Oldenburger wrote that at least two to four cases a month had been dismissed over the prior nine months because Swanson had failed to prosecute them, and others had been waived “with no real justification for doing so other than to avoid the deadline.” Among the cases dismissed were charges of repeat drunken driving, assaulting a police officer and carrying weapons.

Oldenburger signed the termination letter on Nov. 28, 2016, but Swanson did not. Instead he submitted a resignation letter, and he was allowed to leave the following month.

Swanson's record in Wapello County would become a campaign issue two years later in his second bid to unseat Kolacia. As summarized by the appellate court: "Believing that Swanson was unfairly campaigning against him, Kolacia asked Oldenburger, a fellow Democrat. if he had any documents to help in his bid for reelection. Oldenburger told Kolacia 'there may be stuff,' but he would only give Kolacia 'what was allowed under chapter 22,'" the Iowa open records law.

Kolacia submitted an open records request, and Oldenburger provided the termination notice, explaining that Swanson had chosen to resign instead of being fired. The Register wrote about the race, citing the termination letter, in August 2018. Swanson filed his lawsuit nine days later.

Appeals court: no defamation, but more needed on open record issue

In its decision, the three-judge appellate panel upheld the original ruling on several points. While Swanson argued in court filings that there were explanations for his case-management issues, he could not show Oldenburger had defamed him, Judge Mary Chicchelly wrote, because "the statements in the termination notice and disclosed with it are substantially true."

Nor, the court found, could Swanson show that he was "blacklisted" under state law because he offered only "speculation and conjecture" that Oldenburger, in disclosing the records in response to a public record request, was motivated to bar him from future employment.

But on the question of whether those records should have been disclosed in the first place, the court found the district judge was too quick to dismiss Swanson's claim.

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Under the law in effect at the time, government employees' personnel records were confidential except for certain exclusions, including “[t]he fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.” The district court ruled that, because Swanson would have been fired had he not resigned, the termination letter constituted "final disciplinary action."

Swanson argued on appeal that resignation in lieu of termination is not the same thing as being discharged. But in its decision, the appellate court bypassed that argument. Instead the judges focusing on the part of the law permitting disclosure of termination "upon the exhaustion of all applicable contractual, legal, and statutory remedies.”

"Assuming that the termination notice qualifies as final disciplinary action, there is nothing in the record" to show Swanson exhausted other remedies, Chicchelly wrote. Accordingly, the case will go back to the district court to make further determinations about whether Oldenburger's disclosure of the termination notice complied with state law.

Attorney: county 'confident these claims had no merit'

Swanson's attorney did not respond to a message seeking comment on the decision. Attorney David Schrock, representing the county, said in an email his clients were pleased the blacklisting and defamation claims remain dismissed.

"From the outset of the case, we were confident that these claims had no merit, as the information shared by the former county attorney concerning Mr. Swanson‘s separation from employment was factually accurate," Schrock said.

As for the remaining open records claim, Schrock noted the court did not find any wrongdoing by the county, and said the county is considering its options for defending that claim.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris.

This article originally appeared on Des Moines Register: Ex-prosecutor's claim release of firing letter was illegal is revived