Scott County Iowa Vacancy Appointment Committee 2022 Tompkins Knobbe Vargas
For two years, lifelong Scott County residents Dr Allen Diercks and Diane Holst (a former Scott County Board of Supervisor) put their money where their convictions are and hired Attorney Mike Meloy to take Scott County, Iowa, and Auditor Kerri Tompkins to court in 2023 to compel her in the direction of greater transparency and participation with Scott Countians by disclosing the list of names and addresses of 27 candidates who submitted résumés for a vacant supervisor seat on the Scott County Board of Supervisors (SCBS). In March, we published a detailed account of their lawsuit. (RCReader.com/commentary/we-owe-diercks-holst-meloy-gratitude-for-enforcing-iowa-open-records-law)
Perhaps one of the most important tools the public has in holding elected and bureaucratic servants accountable includes requests for information using the Freedom of Information Act (FOIA). FOIAs compel the administrative apparatus to share documents, work products, communications (meeting minutes, emails, etc.), and other relative means of subject matter information.
FOIAs are part of both federal and states Open Records Law. Iowa Open Records Law can be found in Iowa Code Chapter 22. Some of the more specific procedures for sharing information found in public records can be found Iowa Code Chapter 22.2 Right to Examine Public Records – Exceptions; Chapter 22.7 Confidential Records; Chapter 22.11 Fair Information Practices, and more.
Chapter 22.7 Confidential Records has become overwrought. It is a prime example of the administrative creep that plagues government at all levels. To date, no fewer than 75 exemptions to FOIAs, based on confidentiality, have been added to prevent public access to public records, many with multiple sub-exemptions and additional qualifiers. It is similar to the obnoxious creep that has infected government's current classification protocol, arguably reducing “classified” to a means of obfuscation and obstruction versus security and protection.
These administrative obstacles pervert transparent public disclosure essential to a democratically representative Republic such as ours. By preventing the public from accessing critical information relative to myriad government activities, public sector bureaucrats and elected servants operate in a vacuum, outside the purview of proper inspection, evaluation, and measurement. “Labor respects what management inspects” is ignored in the people's role as collective operational oversight, opening the door to multi-level corruption, all of which consumes fairness and justice.
It's never too late to course correct. As American citizens, it is our particular mandate. Most importantly, we must first be vigilant in our own community by holding our local elected and bureaucratic servants accountable, precisely as Dr. Diercks and Mrs. Holst did to their enormous credit.
The lawless in America know the real power lies with our people, that we could stop a lot of corruption if civic engagement were to reignite. In anticipation of such renewed civic purpose, a stealth trend is afoot, both administratively and legislatively, to obstruct public access by neutering FOIAs with the addition of ever more exemptions, and implementing excessive costs to the public for government compliance with FOIA requests, including production of information (redacting, copying, transferring, et al).
This is unacceptable public-sector conduct. Rather than representative, it is entirely unrepresentative, even antithetical to democratic government in any form. And arguably in violation of open records laws, if not the letter, certainly the spirit that emphasizes when in doubt, err on the side of transparency and public accommodation.
The Iowa Freedom of Information Council (IFIC) has a great little handbook on Open Meetings and Open Records that includes relevant questions and answers for public guidance. The law assumes openness, a sentiment quoted in Plaintiffs' Motion for Summary Judgment referenced below:
“Iowa Code Chapter 22 is our state’s Freedom of Information Act (“Act”). The Act provides that “every person shall have 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”. §22.2 of the Iowa Code. “Accordingly, there is a presumption of openness and disclosure under this chapter.” Gabrilson v. Flynn, 554 N.W.2d 267, 271 (Iowa 1996).
“Disclosure is the rule, and one seeking the protection of one of the statute’s exemptions bears the burden of demonstrating the exemption’s applicability.” [underlining added] Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999). “The purpose of the statute is to open the doors of government to public scrutiny and to prevent government from secreting its decision making activities from the public on whose behalf is its duty to act.” Marcus v. Young, 538 N.W.2d, 285, 290 (Iowa 1995). City of Riverdale v. Diercks, 806 N.W.2d at 652 [quoting E-FILED 2023 JUN 06 4:18 PM SCOTT - CLERK OF DISTRICT COURT Rathman] 773, 777 (Iowa 1998). Iowa Courts have interpreted the disclosure provisions of the Act broadly and the exemptions listed under §22.7 narrowly. DeLaMater v. Marion Civil Service Commission, 554 N.W.2d 875, 878 (Iowa 1996).”
(source: IFOIC.org.)
Transparency in Scott County Prevails Thanks to Diane Holst and Dr. Allen Diercks Holding It Accountable Until FOIAs Were Satisfied
Below is an updated timeline for the Diercks and Holst lawsuit against Scott County and Auditor Tompkins (last published in the March 2025 issue of the Reader) to include the final outcome of Meloy's articulate and reasoned challenge that eventually prevailed in compelling the appropriate transparency our representative Republic demands.
Early January 2023
Auditor Tompkins advertised for resumes to fill a vacancy on the Board of Supervisors. Upon receipt of each resume, Auditor Tompkins inquired whether he/she wished for confidentiality. Thirteen did, 14 did not. In other words, this expectation of privacy became a consideration after each resume was already submitted without it. And after it was suggested by the county attorney. Meanwhile Holst's and Diercks' FOIAs were made after the candidate had been chosen, the appointment made, and the applicant sworn in on January 28, 2023.
January 27 and 31, 2023
Diane Holst and Dr Allen Diercks, respectively, filed separate Freedom of Information requests (FOIAs) for the names and corresponding assigned numbers (for the purpose of blind voting) of the 27 candidates who submitted resumes for the pending appointment to fill the Supervisor vacancy on the Scott County Board of Supervisors. The public office vacancy was appointed by just three officials: Auditor Kerri Tompkins, Treasurer Tony Knobbe, and Recorder Rita Vargus, and with no public input or knowledge of candidates.
County Attorney Robert Cusack responded to Holst's request with a spreadsheet containing only the names and corresponding numbers for the 14 candidates who declined anonymity.
Both Diercks' and Holst's FOIA requests for the remaining 13 candidates were denied by Scott County Attorney Robert Cusack, citing exemptions based on privacy expectations as applicants for public employment.
April 6, 2023
Mrs. Holst and Dr. Diercks combined their efforts, submitting a joint Petition to Enforce Chapter 22 request to no avail.
June 6, 2023
Plaintiffs Diane Holst and Dr Allen Diercks filed a Motion for Summary Judgment in District Court to compel the FOIA requests from Scott County and Auditor Kerri Tompkins.
“The County violated Chapter 22 multiple times by failing to release thirteen (13) of the names of applicants for Scott County Supervisor. The County violated Chapter 22 multiple times by failing to release any unredacted parts of the applications for thirteen (13) of the applicants for public office. The Court should order the County to release these names of applicants and release their applications as public records pursuant to §22.1(3) of the Iowa Code.”
July 5, 2023
Defendants Scott County, Iowa, and Auditor Kerri Tompkins, file a Motion for Summary Judgment in District Court to uphold the denial of Holst's and Diercks' FOIAs for remaining 13 Supervisor candidates' information.
July 20, 2023
Arguments were heard by Judge Henry Latham of the 7th Judicial District Court of Iowa.
Representing Plaintiffs Dr. Allen Diercks and Diane Holst, Attorney Michael Meloy argued that the Plaintiffs had every right to the information sought via their FOIAs – public records unlawfully withheld by Scott County and Auditor Tompkins, containing the list of candidates who had submitted resumes to fill one of five Scott County Board of Supervisors seats vacated by Tony Knobbe upon his winning his race for Scott County Treasurer.
Contrary to County Attorney Cusack's claim that the candidates had an expectation of privacy as potential applicants for public employment, those individuals who submitted resumes were not applying as potential public employees, but instead as contenders for an open public office. The public has a right to know who is being considered for appointment(s) to otherwise elected public office(s).
Defendants Scott County and Auditor Tompkins, represented by Scott County Assistant District Attorney Christine Lyons, argued that Tompkins rightly denied the Plaintiffs' FOIA requests because she had a responsibility to protect the confidentiality of those persons who applied for the Supervisor vacancy as they were entitled to an expectation of privacy as potential county employees and exempt from FOIAs in Iowa Code Chapter 22.7.
September 8, 2023
District Court Judge Latham ruled in favor of Scott County and Auditor Kerri Tompkins, agreeing with the rationale for declining the FOIA requests for the candidates' information based on the candidates' status as potential public employees, all of whom were entitled to protection of their expectations of privacy in accordance with exemptions provided in Iowa Code Chapter 22.7.
In the Diercks/Holst case, the applicants were seeking appointment to an otherwise elected public office for a fixed period until the next election. There is no employment contract, no compensation with incentive or merit based pay, nor are there performance evaluations or consequences for public officers. In other words, a supervisor is a public officer versus a public employee, and is required to take an oath of office. In addition, the public has a considerable interest in the appointment, therefore a keen need to know who is seeking to represent them in a supervisor's capacity in their jurisdiction.
“County Supervisors are sworn into office by taking an oath of office. See attached State of Iowa Oath of Office, Ex. 2. State ex rel. Dickey v. Besler, 954 N.W.2d 425 (Iowa 2021). On the other hand, employees of the County are not sworn in.”
In Press Club, the specific controversy involved applicants for City Manager, a public employment position with all that entails, including job description, employment contract, compensation with performance incentives, etc, and no oath of office. Confidentiality was afforded due to applicants possibly being employed elsewhere, ostensibly in similar positions, potentially jeopardizing their current employment if it was learned the applicant was seeking employment elsewhere.
Judge Henry Latham conjured that Iowa Code Chapter 22 section 22.7(18) applied as a statutory exemption in this case, citing City of Sioux City v Greater Sioux City Press Club to support his finding that applicants for employment fall within this exemption. However, he further concluded that Diercks and Holst “did not provide a compelling reason to believe applicants filling this vacancy are not employees.” This decision feels unstudied since applicants were seeking a public office, which by law is considered not to be public employment, ergo would not qualify for this exemption.
October 10, 2023
Dr. Diercks and Mrs. Holst filed their Notice of Appeal with the Iowa Supreme Court, asking that court to review their case in anticipation of a reversal. Iowa law is specific about elected officials not being public employees, whose service requires a robustly transparent public process as clarified in Iowa Code Chapter 69.14A.
“Iowa Code §69.14A provides a vacant County Supervisor position may be filled by appointment by a designated committee of county officers. §69.14(A) of the Code contains no language that allows this appointment process to be secret. Electors of the county may also file a petition requiring the vacancy to be filled by special election, up until fourteen days after any appointment by the Committee is made. §69.14A(1) of the Iowa Code.”
Furthermore, the Iowa Supreme Court has held, “A Supervisor is not an employee, but instead is a public official.” pursuant to §69.14A of the Iowa Code.
December 18, 2024
One year and two months later, the Iowa Supreme Court heard oral arguments from both Plaintiffs and Defendants in Des Moines, Iowa.
February 25, 2025
The Iowa Supreme Court reversed the District Court's decision in a 4-3 ruling. Christensen, Mansfield, Oxley, and McDermott join the opinion to reverse, while Waterman, May, and McDonald dissent. The entire case can be read, including the dissension, at the link below, based not on whether applicants in this case were public employees, but on whether Auditor Tompkins, as records custodian, reasonably believed disclosure of their information would have potentially deterred them from applying for the position.
“This case is not resolved by determining whether Board members are employees and whether applicants for the Board submit employment applications during the appointment process.
Instead, the question that we must answer is whether the record custodian, Tompkins, could “reasonably believe that [persons outside the government] would be discouraged from making [the communications] to that government body if they were available for general public examination.” Iowa Code § 22.7(18). Again, this test is an objective one that must be applied from the perspective of the record custodian. Ripperger, 967 N.W.2d at 552–53.
“Unlike the applicants in Ripperger and Press Club, whom the government promised confidentiality before submitting their information, the Scott County applicants received no such promise beforehand. See Ripperger, 967 N.W.2d at 554; Press Club, 421 N.W.2d at 896. The fact that twenty-seven candidates applied without a promise of confidentiality suggests that the prospect of disclosure did not in fact deter people from submitting applications.
“Additionally, when the applicants were prompted about the confidentiality of their applications, only thirteen of the twenty-seven applicants expressed a preference that their applications remain confidential. In other words, more than half of the applicants were not concerned about their applications being public, even when subsequently asked. Regardless, as we stressed in Ripperger, “government officials cannot shield public documents from examination merely by promising confidentiality for communications that otherwise fall outside section 22.7(18).” 967 N.W.2d at 554. It is the expectation of the custodian – not the applicants – that matters concerning confidentiality. See Kirkwood Inst. Inc., 6 N.W.3d at 12 (“Chapter 22 imposes no duty on government bodies to affirmatively contact every person who has submitted a record subject to this statute to obtain consent for disclosure.”).
The Iowa Supreme Court also acknowledged Diercks' and Holst's argument that public officers are not public employees and as such, the public has a right to participate in the process of filling the position. The public has a need to know who is seeking to occupy the elected offices in their jurisdiction. The Court reversed the ruling and provided the remedy(s) below:
“Because Scott County has violated chapter 22, we now consider the remedies available to Diercks and Holst. Under section 22.10: Upon a finding by a preponderance of the evidence that a lawful custodian has violated any provision of this chapter, a court: a. Shall issue an injunction punishable by civil contempt ordering the offending lawful custodian and other appropriate persons to comply with the requirements of this chapter in the case before it and, if appropriate, may order the lawful custodian and other appropriate persons to refrain for one year from any future violations of this chapter.”
(Source: IowaCourts.gov/iowa-courts/supreme-court/supreme-court-opinions/case/23-1729)
March 4, 2025
Tompkins redelivers the candidates' list to Dr. Diercks and Mrs. Holst, this time with all 27 candidates' cover letters and resumes with addresses and phone numbers redacted as her response to the Iowa Supreme Court's ruling, along with an invoice for production for $151. Recall she had already previously provided 14 of the 27 candidates' information fully unredacted in response to the original FOIA request.
In other words, upon the Iowa Supreme Court's reversal, instead of then complying with a complete, unredacted list that included the remaining 13 candidates' unredacted information, she continued to obstruct by resubmitting the list with all 27 candidates information, but redacting addresses and phone numbers, including a charge to Diercks and Holst for the redactions in direct violation of the Iowa Supreme Court.
March 19, 2025
Attorney Mike Meloy swiftly filed a “Motion to Compel” with the District Court, demanding that Tompkins comply with the Supremes' ruling and provide an unredacted list of candidates (names and addresses).
March 25, 2025
Meanwhile Tompkins re-sends the original 14 candidates unredacted the missing information (addresses and phone numbers), but again left the remaining 13 candidates' information still redacted. So much for the spirit of the law.
April 8, 2025
A settlement was finally reached for the remaining 13 candidates' information unredacted. And for a taxpayer-funded reimbursement of $93,025 for attorneys fees, an expense egregious by its sheer frivolous disregard for Scott Countians as the bearer of burden for County bad acts.
April 11, 2025
Assistant County Attorney Christine Lyons finally released the remaining 13 names and addresses unredacted to Diercks and Holst.
April 28, 2025
As stated above, a Scott County taxpayer-funded reimbursement in the amount of $93,025 for Diercks' and Holst's attorney's fees was issued because Scott County and Auditor Tompkins once again decided to ignore the law, if not the letter then certainly the spirit, to snub transparency and public participation by opting out of a special election, instead choosing to appoint their preference for a replacement supervisor, in collusion with Scott County Board of Supervisor Chairman Ken Beck and outgoing Supervisor Tony Knobbe, now the Scott County Treasurer, regardless of the conflict and resulting financial consequences. Isn't that just super (pun totally intended)?
The good news in all this is that the Iowa legislature just passed a law that requires counties such as Scott to hold mandatory special elections if a Supervisor vacancy occurs with a remaining term greater than 70 days.
See also the commentaries "Debris in Davenport Is Gone, but the Secrets Remain: May 15 Iowa Public Information Board Might Hear County Attorney Request to Keep DCI Report on 324 Main Street Collapse Hidden" by Randy Evans and "Scott County Attorney Keeping DCI Report on 324 Main Collapse Secret Will Cost Taxpayers … Again." by David Ezra Sidran.
