Swanson v. Oldenburger

IN THE COURT OF APPEALS OF IOWA
No. 21-1176
Filed September 21, 2022
STEPHEN J. SWANSON,
Plaintiff-Appellant,
vs.
GARY OLDENBURGER, WAPELLO COUNTY ATTORNEY, and WAPELLO
COUNTY,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John G. Linn,
Judge.
Stephen Swanson appeals the grant of summary judgment for the
defendants on claims related to disclosing information in his personnel record.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Matthew B. Moore of The Law Offices of Matthew B. Moore, PLLC,
Oskaloosa, for appellant.
David E. Schrock and Rachael D. Neff of Smith Mills Schrock Blades P.C.,
Cedar Rapids, for appellees.
Heard by Tabor, P.J., and Greer and Chicchelly, JJ.
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CHICCHELLY, Judge.
Stephen Swanson sued Wapello County Attorney Gary Oldenburger and
Wapello County following the disclosure of information about his employment,
alleging the disclosure violated Iowa’s open record laws, prevented him from
obtaining other employment, and defamed him. He appeals the order granting
summary judgment for the defendants on each claim. Swanson contends the
district court erred in applying Iowa Code section 22.7(11)(a)(5) (2016)1 to his
open-records claims. As for his blacklisting claims, Swanson contends the court
erred by determining that section 730.1 cannot be the basis for a civil lawsuit
against Oldenburger as an individual and that Oldenburger’s acts did not create
liability for the county. Finally, Swanson contends the court erred by finding he
failed to raise a question of fact on whether any of Oldenburger’s statements were
false and made with actual malice to support his defamation claims.
We affirm the district court on the grant of summary judgment on Swanson’s
blacklisting and defamation claims. But because the disclosure of Swanson’s
personnel records was impermissible under Iowa Code chapter 22, we reverse the
grant of summary judgment on Swanson’s open-records claim and remand for
further proceedings.
I. Background Facts and Proceedings.
Swanson was employed by Wapello County as an assistant county attorney
for about six years. During that time, he received several warnings for failure to
satisfactorily resolve cases. Lisa Holl, Oldenburger’s predecessor, gave Swanson
1 Unless stated otherwise, all citations are to the 2016 version of the Iowa Code.
3
a written reprimand in 2012 and suspended him for one week without pay in 2014.
In 2015, Oldenburger emailed Swanson about his failure to resolve cases within
one year before issuing a four-page letter of reprimand. A second email followed
the reprimand.
When Swanson continued to have problems with case resolution one year
later, Oldenburger gave Swanson a choice: resign from employment or be
terminated. Oldenburger drafted a notice of termination that summarized the past
disciplinary actions and Swanson’s continued difficulties with case resolution that
led to dismissals for failure to prosecute. Oldenburger signed and dated the notice
on November 28, 2016. Swanson’s signature of acknowledgment is absent from
the document as Swanson opted to resign instead. His effective date of
resignation was December 23, 2016.
In 2018, Swanson ran for Boone County Attorney against the incumbent,
Dan Kolacia. Believing that Swanson was unfairly campaigning against him,
Kolacia asked Oldenburger 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.” Oldenburger said, “So if you made
the request under chapter 22, I would have to comply, but that’s all I can do for
you.” Shortly after their conversation, Kolacia submitted to Oldenburger a request
for information under Iowa Code chapter 22. He asked for “the opportunity to
inspect or obtain copies of public records that pertain to all reprimands, reprisals,
performance reviews, and letters concerning Stephen Swanson’s employment.” In
response, Oldenburger emailed Kolacia the termination notice he had prepared,
noting that Swanson “resigned in lieu of termination.” Oldenburger’s email states,
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“I believe this is the only document I can release pursuant to Chapter 22, as this is
the only document which shows the reasons and rationale for his resignation.”
In August 2018, a reporter for the Des Moines Register contacted
Oldenburger for information about Swanson’s employment with the county
attorney’s office. The reporter asked Oldenburger if he could “confirm whether this
Nov. 28, 2016 letter that you signed did in fact result in the termination of Mr.
Stephen Swanson.” He also asked for a list of cases dismissed because of
Swanson’s failure to meet deadlines. Oldenburger replied, “I can confirm that this
letter was provided to Mr. Swanson, along with a resignation letter. Mr. Swanson
as a result did resign in lieu of termination . . . .” But he explained that listing the
dismissed cases would be “pretty challenging” because of the time and cost it
would entail. The reporter followed up by asking about the discrepancy in date of
termination listed in the termination notice (December 1) and the date on which
Swanson’s resignation became effective (December 23). Oldenburger answered,
“I offered Mr. Swanson the opportunity to resign in lieu of being terminated, and he
asked for more time and chose a date just before Christmas, which I agreed to.”
On August 13, the Des Moines Register published the reporter’s article
about Swanson under the headline, “Tardy Lawyer Runs for Office.”2
Nine days after Register published the article, Swanson sued, alleging that
Oldenburger and Wapello County3 violated Iowa Code chapter 22 by releasing
2 Swanson lost the election for Boone County Attorney that November.
3 Swanson also filed claims against Kolacia and the Boone County Democratic
Party (BCDP). At the time of the district court’s ruling, Swanson had voluntarily
dismissed with prejudice his claims against the BCDP and planned to dismiss his
claims against Kolacia.
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confidential personnel records. He claimed they also prevented him from obtaining
other employment, in violation of Iowa Code sections 730.1 and 730.2, and illegally
provided confidential personnel records to another, in violation of Iowa Code
section 91B.2. Finally, Swanson claimed Oldenburger and Wapello County libeled
and slandered him. Oldenburger and Wapello County moved for summary
judgment on all counts, which the district court granted. Swanson appeals.
II. Scope and Standard of Review.
We review the grant of summary judgment for correction of errors at law.
See Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019). Summary judgment is
appropriate when the material facts are undisputed and the moving party is entitled
to judgment as a matter of law. See id. We view the record in the light most
favorable to the nonmoving party, indulging every legitimate inference within
reason. See id. If reasonable minds could draw different inferences from the
record and reach different conclusions, summary judgment is not proper. See id.III. Disclosure of Confidential Records.
We begin by addressing Swanson’s claims related to the alleged open-
records violation. The Iowa Open Records Act provides “the right to examine and
copy a public record and to publish or otherwise disseminate a public record or the
information contained in a public record.” Iowa Code § 22.2(1). Although the act
exempts certain public records from disclosure, there is, generally, “a liberal policy
in favor of access to public records.” Mitchell v. City of Cedar Rapids, 926 N.W.2d
222, 229 (Iowa 2019) (citation omitted). The burden, therefore, falls on the party
claiming a record is exempt to show that an exemption applies. See id. We
narrowly construe an exemption unless it uses “broadly inclusive” language, in
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which case we give effect to the legislative purpose underlying the exemption
rather than “mechanically apply[ing] the narrow-construction rule.” DeLaMater v.
Marion Civ. Serv. Comm’n, 554 N.W.2d 875, 878 (Iowa 1996).
Section 22.7 lists the types of information exempt from the disclosure. At
issue is an exemption for “[p]ersonal information in confidential personnel records”
of identifiable individuals employed by government bodies. See generally Iowa
Code § 22.7(11)(a). But the legislature excluded some information that would
otherwise fall under that exemption. See id. § 22.7(11)(a)(1)–(5). One of those
exclusions involves information in personnel records relating to “[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.” Id.
§ 22.7(11)(a)(5). The question before us is whether the termination notice
Oldenburger disclosed falls under this exclusion or is exempt from the disclosure
requirements of chapter 22.
The district court determined that Swanson’s resignation meets the criteria
for disclosure under section 22.7(11)(a)(5). In reaching its conclusion, the court
noted that section 22.7(11)(a)(5) is a disclosure provision, and therefore, the term
“discharge” should be interpreted broadly. Although Black’s Law Dictionary
defines “discharge” as “the firing of an employee,” Merriam Webster defines it more
broadly as “to dismiss from employment” or “to release from service or duty.” The
district court used the latter definition in reaching its conclusion that the term
“discharge” encompasses resignation in lieu of termination. Because Swanson
concedes that he would have been fired if he had not resigned, the court found the
termination notice released him from his employment. The court held that, as
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such, the termination notice qualifies as information relating to a discharge under
section 22.7(11)(a)(5) and disclosure was therefore permitted.
Swanson contends the district court erred in its interpretation of
section 22.7(11)(a)(5). He points to a 2017 legislative amendment that added
“[t]he fact that the individual resigned in lieu of termination” and “the documented
reasons and rationale for the resignation in lieu of termination” as information in
personnel records that can be disclosed under section 22.7(11)(a)(5).4 See 2017
Iowa Acts ch. 10, § 50. In Swanson’s view, this change in the statutory language
shows the legislature did not consider “resignation in lieu of termination” as
discharge in its prior version of the law. The defendants counter that the
amendment only “clarif[ied] and expound[ed] on” what types of information are
subject to disclosure.
We need not reach the question of whether the 2017 legislative amendment
clarified or altered the open records statute because the statute in effect at the time
of Swanson’s discharge was unambiguous. See State v. Guzman-Juarez, 591
N.W.2d 1, 3 (Iowa 1999) (noting that a statutory amendment can either alter an
existing law or clarify it but “question[ing] the propriety of even considering the
subsequent history of this law when the statute as originally enacted is not
4 The amendment also requires a government body taking disciplinary action
against an employee that may result in information described in
section 22.7(11)(a)(5) being placed in the employee’s personnel record to “notify
the employee in writing that the information placed in the employee’s personnel
file as a result of the disciplinary action may become a public record.” 2017 Iowa
Acts ch. 10, § 54. Although the amendment occurred before Oldenburger’s
disclosures, it applies only to information placed in personnel files after the
effective date of the statute, February 17, 2017. See 2017 Iowa Acts ch. 10, § 53.
The termination letter was placed in Swanson’s personnel file before this date.
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ambiguous”). That statute does not allow disclosure in all instances in which an
employee is discharged; rather, it limits the disclosure to situations in which a
government employee is “discharged as the result of a final disciplinary action
upon the exhaustion of all applicable contractual, legal, and statutory remedies.”
Iowa Code § 22.7(11)(a)(5) (2016). In other words, there must be a final
disciplinary action and the employee must exhaust all applicable remedies before
the information is disclosed. Assuming that the termination notice qualifies as final
disciplinary action, there is nothing in the record to support a finding that Swanson
exhausted all contractual, legal, and statutory remedies. See Susan P. Elgin, What
Happens in Iowa Stays in Iowa: A Framework for Implementing Changes to State
Open Records Laws, 98 Iowa L. Rev. 1677, 1703 (2013) (noting “it is possible that
the government employer was able to promise confidentiality, given the state of
the law at the time, . . . in exchange for either the employee’s resignation or a
forgoing of his or her right to a hearing”). Without a showing that Swanson
exhausted all available remedies, the termination notice and information about his
resignation was exempt from disclosure under Iowa’s open records statute.
Because the district court erred in determining the disclosures were permitted
under section 22.7(11)(a)(5), we reverse the grant of summary judgment on
Swanson’s claim regarding the disclosure of confidential information and remand
for further proceedings.
IV. Blacklisting.
We turn to Swanson’s blacklisting claims against Oldenburger and Wapello
County. Blacklisting claims stem from the provisions of Iowa Code section 730.1
and 730.2. Section 730.1 states:
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If any person, agent, company, or corporation, after having
discharged any employee from service, shall prevent or attempt to
prevent, by word or writing of any kind, such discharged employee
from obtaining employment with any other person, company, or
corporation, except by furnishing in writing on request a truthful
statement as to the cause of the person's discharge, such person,
agent, company, or corporation shall be guilty of a serious
misdemeanor and shall be liable for all damages sustained by any
such person.
Section 730.2 states:
If any railway company or other company, partnership, or
corporation shall authorize or allow any of its or their agents to
blacklist any discharged employee, or attempt by word or writing or
any other means whatever to prevent such discharged employee, or
any employee who may have voluntarily left said company's service,
from obtaining employment with any other person or company,
except as provided for in section 730.1, such company or partnership
shall be liable in treble damages to such employee so prevented from
obtaining employment.
Reading the provisions together, the court in Glenn v. Diabetes Treatment Centers
of America, Inc., 116 F. Supp. 2d 1098, 1103–04 (S.D. Iowa 2000), set forth these
elements of a claim of action:
(1) the defendant discharged plaintiff; (2) thereafter, by word, writing
or other means the defendant prevented or attempted to prevent the
plaintiff from obtaining other employment; (3) defendant acted with
the predominant purpose of preventing plaintiff from obtaining future
employment; and (4) defendant’s conduct was a proximate cause of
damage to plaintiff.
Swanson alleges that Oldenburger violated section 730.1 by trying to
prevent him from obtaining other employment and providing a false statement
about his discharge. He claims Wapello County violated section 730.2 by allowing
Oldenburger to blacklist him. Following an unpublished decision of this court, the
district court determined that a civil cause of action could not be brought against
Oldenburger under section 730.1 because it is a criminal statute. See Conrad v.
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Iowa Cent. Cmty. Coll., No. 07-0818, 2008 WL 2746324, at *4 (Iowa Ct. App.
July 16, 2008) (“Conrad concedes that section 730.1 does not apply because it is
a criminal statute . . . .”). And as for the county, the court found Oldenburger was
not granted the authority to render it liable for his actions:
Assuming that Wapello County is a “corporation” within the
meaning of section 730.2, the statute only applies if the corporation
“authorize[d] or allow[ed] any of its agents to blacklist” the employee.
The Court finds that Wapello County cannot be held liable under
section 730.2 for the actions of Oldenburger in disclosing the
termination notice. The power of a county is vested in the board.
Iowa Code § 333.301(2). Oldenburger, as county attorney, did not
have the authority to trigger liability for the County under the
blacklisting statute.
The district court also found that Swanson failed to show evidence that the
defendants prevented or attempted to prevent him from obtaining other
employment or acted with a purpose to do so.
Even if the district court erred by finding the county could not be held liable
for Oldenburger’s actions, Swanson’s blacklisting claim fails as a matter of law
because he must show the defendants intended to injure him by preventing future
employment. Swanson claims that “Oldenburger knew his illegal disclosure would
essentially go viral and, arguably, reach not only the Boone County voters electing
the Boone County Attorney, but would also be a permanent, internet, ‘Scarlett’s
Letter’ haunting [him] as to all future potential employers in perpetuity.” We
disagree. The record shows Oldenburger gave the information to Kolacia and a
reporter in response to open records requests. Although Oldenburger may have
erred in his belief that the information was not confidential, there is no evidence on
which to base a finding that Oldenburger or Wapello County intended to injure
Swanson in order to deny him future employment—only speculation and
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conjecture. See Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d 540, 545 (Iowa
2018) (“[S]peculation is not sufficient to generate a genuine issue of fact.” (citation
omitted)). Because Swanson failed his burden, we affirm the grant of summary
judgment for the defendants.
V. Defamation.
Finally, we address Swanson’s defamation claims. Swanson alleges that
the termination notice contained false statements and that Oldenburger defamed
him by releasing it. He also alleges the county is liable for Oldenburger’s acts
under the doctrine of respondeat superior.
“The prima facie elements a plaintiff must prove in a defamation action are
that ‘the defendant (1) published a statement that was (2) defamatory (3) of and
concerning the plaintiff.’” Bauer v. Brinkman, 958 N.W.2d 194, 198 (Iowa 2021),
as amended (Apr. 21, 2021). But as our supreme explained in Bertrand v. Mullin,
846 N.W.2d 884, 892 (Iowa 2014), “a plaintiff who is a candidate for public office
becomes a public official.” Claims of defamation against a public official, as here,
have two added elements that require proof by clear and convincing evidence: “the
statement must be false and it must be made with actual malice.” Bertrand, 846
N.W.2d at 892. “A statement is made with actual malice when accompanied by
“knowledge that it was false or with reckless disregard for its truth or falsity.” Id. at
894 (citation omitted).
The district court found Swanson failed to show sufficient evidence for a
factual dispute on whether the statements Oldenburger made in disclosing the
termination notice were false or made with actual malice:
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[Swanson] admits that he was given the option to resign in lieu of
termination. In Oldenburger’s email to Kolacia, Oldenburger
explained that [Swanson] resigned in lieu of termination, and that the
termination letter was prepared for [Swanson] to sign but was not
used. These were truthful statements. Furthermore, the statements
made by Oldenburger to [the reporter] were also truthful.
Oldenburger confirmed that [Swanson] resigned in lieu of
termination. His other statements to [the reporter] about the
resignation date, and the dates that [Swanson] was employed with
Wapello County, were also truthful statements. [Swanson] admits
that these are true statements.
The statements within the termination notice regarding the
case management issues and prior reprimands are also substantially
accurate statements, as conceded by [Swanson]. [Swanson] argues
there are explanations for his case management issues, but that
does not change the truthfulness of the statements made in the
termination notice. [Swanson] also argues that the termination
notice could have been misunderstood by third parties, who did not
know that [Swanson] in fact resigned. However, that does not make
it a “false statement.” The Court notes that the termination notice
was unsigned, and Oldenburger explained in his communications
that [Swanson] resigned in lieu of termination.
We agree that Swanson has failed to show the falsity of the statements made by
Oldenburger.
On appeal, Swanson claims that a jury should be allowed to consider the
circumstances surrounding the disclosure, like his acrimonious relationship with
Oldenburger, the discussion Kolacia had with Oldenburger, and the timing of the
disclosures. But none of these circumstances changes the fact that the statements
in the termination notice and disclosed with it are substantially true. For that
reason, Swanson’s defamation claims fail as a matter of law, and the district court
properly granted summary judgment for the defendants.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Tabor, P.J., concurs; Greer, J., concurs specially.
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GREER, Judge (concurring specially).
I concur in the majority opinion but write separately to offer additional
support for the analysis over the open records violation that I found compelling.
After the legislature amended Iowa Code section 22.7(11)(a)(5) in 2011, our court
addressed the terms we examine today in this case. Am. C.L. Union Found., Inc.
v. Recs. Custodian, Atl. Cmty. Sch. Dist., No. 11-0095, 2011 WL 4950199, at *3
(Iowa Ct. App. Oct. 19, 2011). In this unpublished case we held that the new
language (the same language we examine here) “only exempts from the
confidentiality requirement ‘a final disciplinary action’ that resulted in the
employee’s discharge.” Id. (emphasis added) (quoting 2011 Iowa Acts ch. 289,
§ 10). We then noted:
The new law identifies as an exemption only this single form of
disciplinary action—an action that results in discharge. Moreover,
the absence of an exemption for all disciplinary actions reflects the
legislature’s intent to retain the confidentiality of the type of
information sought in this case. Without clear evidence to the
contrary, we presume the legislature’s act in refining this statute is
with knowledge of the “existing state of the law and judicial
interpretations.”
Id. (some emphasis added) (citation omitted). After our case was decided, an
author addressed concerns over the release of an employee’s personnel
information under the code section:
[A]n employee who otherwise would have sought a name-clearing
hearing perhaps forwent that right on the assumption that the reason
for his or her termination would remain confidential. Indeed, it is
possible that the government employer was able to promise
confidentiality, given the state of the law at the time, to the employee
in exchange for either the employee’s resignation or a forgoing of his
or her right to a hearing. If that promise is breached by retroactively
releasing records that could be damaging to the employee, the
employee may have a cause of action for deprivation of due process.
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Susan P. Elgin, What Happens in Iowa Stays in Iowa: A Framework for
Implementing Changes to State Open Records Laws, 98 Iowa L. Rev. 1677, 1702–
03 (2013).
In my view, the language found in the 2016 version of the Code—that
disclosure is allowed only after a full and final discharge—did not address the
“resignation in lieu of termination” option. And we assume that in 2017 the
legislature balanced the competing policy interests and then determined that the
door was now open for records where an employee “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.” See Iowa Code § 22.7(11)(a)(5) (2017). Because
the new law added demotions as well as a resignation in lieu of termination, it
would appear the legislature expanded the disclosure requirements rather than
clarifying the previous language. Allowing for notice to employees who might
chose a resignation, the third endnote to the amended section 22.7 provided that
disclosure under the new language would be limited to “information placed in an
individual’s personnel records on or after February 17, 2017.” (Emphasis added.)
Going forward, governmental workers would have knowledge that this material
might now be produced and an employee might not resign but instead fight the
adverse employment action. Thus, the majority decision correctly reverses the
grant of summary judgment on the treatment of the disclosure under the open
records act and allows for fair notice of the legislative changes to employees.