Godfrey case: a search warrant on judge’s chambers and $4.1 million bill from Conlin. Also: Another cyclist sues city. Opioid data. Steve Leath.

7/31/2019

AUGUST 7 UPDATE: Christopher Godfrey’s attorneys have submitted bills of $4,130,673.38 for fees and expenses in the retaliation and discrimination lawsuit he won against former Gov. Terry Branstad and Brenna Findley Bird, who was counsel to the governor.

The bills in the seven-and-a-half-year-old case follow a jury verdict of $1.5 million won by Godfrey, the former Iowa workers compensation director who had said the Governor and his aides had discriminated against him because he was gay. Branstad had asked Godfrey, a Democrat who had a fixed six-year term, to resign. When Godfrey refused, the Governor cut his salary.

If the fee request is upheld, the suit’s costs to the taxpayers in Iowa will approach $8 million — $4.1 million for Godfrey’s lawyers, $2 million or so for Branstad’s lawyers, and $1.5 million in a judgment awarded by the eight-person jury. So far.

The pay cut triggering the suit and the resulting $7.6 million in fees and costs and damages totaled $150,000 over the four-and-a-half years that remained on Godfrey’s term. Godfrey ultimately resigned and took a job with the U.S. Department of Labor in Washington.

The state has indicated it will appeal the district court decision to the Iowa Supreme Court — which already had ruled on two narrow issues in the case — so bills from both sides could continue to mount. If Godfrey loses, the state will not be responsible for fees paid to his lawyer but still will be on the hook for fees paid Branstad’s lawyers.

Godfrey’s main lawyer was former U.S. Attorney Roxanne Conlin, who submitted a bill for 2,378.2 hours of her time at $940 an hour — $2,235,508. Paige Fiedler, who stepped in to help at a key moment in the trial after Conlin was felled by contaminants from the remodeling of the Polk County Courthouse, submitted a bill for $280,350 — 534 hours at $525 an hour. A Conlin associate, Jean Mauss, billed $860,625 for 1,912.5 hours at $450 an hour.

Conlin’s motion says $940 an hour is her customary rate. The brief refers to the 75-year-old Conlin as “the grande dame of Iowa attorneys.”

District Judge Brad McCall will rule on the fee requests, though in another complexity of the complex case Branstad’s lawyers have filed motions asking McCall to recuse himself from further proceedings. 

That action followed the arrest of Conlin’s son who went to the courtroom with air-quality-monitoring equipment following the illness of his mother. Sheriff’s deputies arrested him after he refused to leave the courtroom (the court was not in session at the time), and while he was being arrested he dropped his cell-phone and glasses. He apparently had been using the phone to record his activities, including the arrest. McCall apparently picked up the phone and glasses and took them to his chambers. The deputies then received a search warrant for the chambers but didn’t find the phone or glasses.

According to the recusal motion, McCall explained that he “had already returned the phone and glasses” to one of the lawyers in the Godfrey case.

In the recusal motion, Branstad’s lawyers, led by Frank Harty of the Nyemaster firm, say  Roxanne Conlin and her son, J.B. Conlin, now “are material witnesses to conduct that has caused the [Iowa Department of Criminal Investigation] to investigate Judge McCall. [Roxanne Conlin] is therefore in a position to impact the course of an investigation into the trial judge.”

It adds: “This investigation hangs over Judge McCall’s head like the sword of Damocles, and because of their role as material witnesses to Judge McCall’s conduct Plaintiff’s counsel and Plaintiff’s counsel’s son have a great deal [of] control over whether the string is cut.”

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A Polk County judge this summer signed a warrant allowing a deputy sheriff to search the chambers of a fellow judge in search of evidence in a bizarre criminal case. No one can remember anything like that ever happening before.

“This was a first,” says John Sarcone, who has been county attorney for 28 years and whose office prepares search-warrant applications for the sheriff.

It was all part of a weird side show in the long-running discrimination and retaliation lawsuit former Iowa Workers Compensation director Chris Godfrey filed against former Gov. Terry Branstad and some members of his administration. (See comment on next page.)

The suit, filed in January of 2012, finally went to trial in June in Courtroom 208 of the historic Polk County Courthouse. District Judge Brad McCall was presiding. Early in the trial, Godfrey’s lawyer, Roxanne Conlin, fell ill with breathing difficulties and was hospitalized. She said the problem was caused by dust coming into the courtroom from renovation work being done at the courthouse.

Conlin earlier had asked that the trial be moved to a different courtroom. Chief Judge Michael Huppert rejected her request. (Ultimately, the trial was moved to Newton.)

At any rate, to prove the courtroom was an unhealthy place to work, Conlin’s son, J.B. Conlin, entered the otherwise empty courtroom with air-monitoring equipment. Some deputy sheriffs saw him and called a building supervisor, who asked Conlin to leave. According to a court document, “Conlin refused, advising (the building supervisor) that it was a public building and he was allowed to stay.”

Deputy Sheriff John Harris then was called. “I walked into Courtroom 208 and made contact with Conlin,” he stated in an affidavit. “I shook Conlin’s hand, introduced myself, and asked Conlin to leave. Conlin took a black in color I-Phone out of the right pant pocket and appeared to be recording the conversation.” Conlin again refused to leave, according to the document, and deputies arrested him for “interference with official acts.”

While all this was happening, the phone “landed on the floor,” Harris’ affidavit says. “Conlin asked Judge McCall to pick up the cell-phone. Judge McCall retrieved the cell-phone and carried it away.” Ten minutes later, deputies asked McCall to give the phone back, later saying in the affidavit that it was “the only known recording of the crime that occurred,” but the judge refused. The deputies then sought a search warrant. Sarcone’s office prepared it, District Judge Carla Schemmel signed it, and McCall’s office then was searched.

Nothing was found.

Meantime, Judge McCall hired a lawyer — Alfredo Parrish — and Chief Judge Huppert asked that a judge from Southwest Iowa be assigned Conlin’s case rather than a Fifth District Judge. The Supreme Court agreed to the request.
            A pretrial hearing was held on July 22, and Fourth District Associate Judge Eric Nelson granted Conlin’s request to photograph “the immediate area, walls, flooring, including exposed ductwork in courtroom 208, including the entrance.” Nelson set a jury trial in the case for Oct. 7.

It’s understood Conlin somehow got his phone back. …

From a Washington Post database:

From 2006 to 2012, there were 129,633,553 prescription pain pills supplied to Polk County, with the number increasing each year. That’s 44 pills per person per year. Of those, 47,816,390 of the pills — mainly hydrocodone and oxycodone — were supplied to prescription holders by Walgreen drug stores. Statewide, there were 562,927,414 prescription pain pills supplied, with Broadlawns Medical Center the individual pharmacy receiving the most — 5,280,560 pills. Combined, Walgreen pharmacies received 113,718,980 of the prescription pain pills.

The shipment of pills to Iowa (and elsewhere) has been rising yearly, and deaths in the state have been on a steady increase. According to the National Institute on Drug Abuse, there were 206 overdose deaths from opioids in Iowa in 2017. That’s 6.9 deaths per 100,000 persons — which is less than half the nationwide rate of 14.6 per 100,000.
The Post and the Charleston Gazette-Mail in West Virginia fought for a year to get the database from the Drug Enforcement Administration, and then the Post went through 380 million transactions to come up with county-by-county figures for the United States. …

Real-estate notes: The Aspen, Colorado, home of Melva Bucksbaum is on the market for $23.5 million, and The Wall Street Journal says it “could potentially be a teardown.” Even though the five-bedroom home (with separate caretaker’s apartment) is in good condition, the paper reported, “many homes in the area have been replaced with larger, more modern houses in recent years.” Bucksbaum, an exceedingly nice and generous woman who was a long-time Des Moines resident and art collector, died in 2015. Her estate also has listed her 51-acre property in Sharon, Connecticut, for $20 million, the Journal reported.

Closer to home, a 5,900-square-foot home at 415 Foster Drive sold a couple of months ago for $1,625,000. The 12-room home has a pool and a bathhouse and sits on nearly an acre. It was sold by Steven S. Smith to Michael Anderson, according to Polk County records. It’s the only million-dollar-plus sale of a house in Des Moines this year.

And what’s going on at George Cataldo’s house in Glen Oaks? The 9,200-square-foot home built by Gary Kirke on a 5.2-acre plot in 1993 was bought by Cataldo in 2008. On Jan. 1, 2017, he sold it on contract to John and Mary Krohn. According to documents on file with the Polk County Recorder, the price was $4,750,000, with $400,000 down and monthly payments of $19,535.45 from Feb. 1, 2017, until Jan. 1, 2020, when the balance and interest were to be paid in full. (The county assessor recently valued the house at $2,908,000.)

But in January of this year, Cataldo filed a “notice of forfeiture.” The document says the Krohns were $73,000 behind in their payments. According to the Assessor’s Office, title on the five-bedroom, seven-bathroom home has reverted to Cataldo. But Cataldo told CITYVIEW the other day that the Krohns now have paid up, that “we just haven’t got the paperwork straightened out.” He said John Krohn had run into some “financial difficulties.”

Indeed. Last year, the 60-year-old Krohn — who for 20 years was a broker with Principal Securities in West Des Moines — was sanctioned by the Financial Industry Regulatory Authority for unauthorized outside business transactions. According to one lawyer, Krohn agreed to a three-month suspension from associating with a FINRA firm and paid a $10,000 fine. He now is president of Spotlight Innovation, Inc., a penny-stock bioscience company based in West Des Moines. He also has been in court in recent weeks in a dispute over financial terms of a divorce several years ago, Polk County District Court records show. …

A fourth bicyclist has sued the city of Des Moines after he was injured when he hit a curb that the city built across what most people thought was a bike path at 16th Street and MLK Jr. Parkway downtown. The city settled two similar suits earlier this year.

In the latest suit, William Swoboda says he was biking along the path on July 27, 2017, when he hit the newly installed, unmarked and unpainted curb. The lawsuit says the accident caused him to “endure pain, suffering, and loss of function of mind and body” as well as loss of earnings.

For 15 years, since MLK and its adjoining bike path were built, bikers had a straight exit ramp to cross 16th. But in 2017, the city started fiddling with the intersection, replacing the straight exit from the path to the street with an angled one — and then putting the curbs where the path used to be. There was no warning about the new route (until in the dead of night a biker painted the curb bright yellow and attached three toilet plungers as a warning barrier), and there quickly were several accidents there.

The city said the bikers should have been more careful, but earlier this year it paid $1.5 million to settle a lawsuit from injured biker Mark Evans and $185,000 to settle a suit by biker Robert Foss. In May, Larry Conklin filed a similar suit, alleging he hit the curb on the morning of June 5, 2017, fell and “sustained injuries to his head, collar bone, and ribs.” That suit has not been settled.

A few months after the accidents, the city redesigned the intersection again — twice, actually — and ultimately put the straight path back in. Before that, though, someone made off with the toilet plungers. …

Steve Leath, the controversial former president of Iowa State University, has been run out of the presidency at Auburn after just two years. No one who really knows what happened is saying why — the departure documents bar anyone from saying anything but nice stuff — but it was probably his imperial ways.

“Leath wasted little time alienating important people at Auburn,” Phillip Marshall, a sports columnist in Alabama, wrote. “He spent millions over what had been approved to remodel the president’s mansion. He spent literally hundreds of millions of dollars on building projects and other initiatives that the Board of Trustees didn’t like but didn’t, early on, have the will or the votes to stop.” And, Marshall said, he mishandled sports issues, too.

Leath still had three years to go on his contract, and Auburn is paying him $4.5 million to leave. The story was first reported in Iowa by the Cedar Rapids Gazette, which filed a freedom-of-information request to get the ouster agreement. …

Sarai Rice, the widely admired minister who has run the Des Moines Area Religious Council since 2008, has left. Among other things, DMARC runs the successful food pantry network and the housing stability fund, vital programs for the poor in Polk County.

“I’d like to do something else in my life,” she told CITYVIEW. “I’m not sure yet what the next thing is, but hopefully it will involve fewer hours and will be work that requires me to learn something completely new.” Five days after she wrote that email, her husband, former Ames school superintendent Ron Rice, died unexpectedly after what his obituary called “a well-lived and well-loved life.” He died a few days shy of his 78th birthday. …

Justice Bruce Zager of the Iowa Supreme Court has said the court will allow an expedited appeal in the lawsuit Cedar Rapids lawyer Bob Rush and others brought challenging the law the legislature passed this year changing the way Supreme Court nominees are chosen and shortening the length of Chief Justice Mark Cady’s term as chief. The suit basically alleges that the law strips the court system of its co-equal status under the Iowa Constitution. A Polk County district court had dismissed the suit, saying the plaintiffs lacked standing to sue. …

In case you were wondering: Rekha Basu now writes just twice a week for the Des Moines Register because she cut back to part-time at the beginning of the year. With all the departures and the cutback in the number of editorials in recent times, the liberal Basu has become the keeper of the flame at the paper. ♦

Who Makes What

A new fiscal year began on July 1. Here are the salaries for the 15 highest-paid employees of the city, the county and the Des Moines school district for the new year.

City of Des Moines
Scott Sanders, city manager…………………………………….$259,700
Jeff Lester, city attorney……………………………………………$208,446
Matt Anderson, deputy manager…………………………….$183,510
Dana Wingert, police chief………………………………………..$183,314
Lawrence McDowell, dep. city attorney………………….$181,759
Pam Cooksey, assistant city manager…………………….$180,302
Phil Delafield, assistant city manager………………………$174,712
Jonathan Gano, public works director…………………….$174,672
Robert Fagen, finance director…………………………………$174,652
Carol Moser, deputy city attorney…………………………..$173,584
Kathleen Vanderpool, deputy city attorney………….$173,584
James Wells, human resources director………………….$170,220
John Tekippe, fire chief……………………………………………..$169,484
Ben Page, parks and rec director……………………………..$161,861
Anna Whipple, IT director………………………………………….$161,134
Des Moines School District
Tom Ahart, superintendent………………………………………$306,484
Matthew Smith, assoc. superintendent………………….$222,425
Harold Good, chief operations officer…………………….$211,943
Lilia Alvarado, chief of human resources………………..$177,000
Shelly Bosovich, head of student services………………$156,127
Timothy Schott, executive director/schools…………..$153,736
Susan Tallman, executive director/schools…………….$153,736
Leslie Morris, East High principal……………………………..$149,322
Noelle Nelson, executive director/academics………..$149,307
Nicholas Lenhardt, controller……………………………………$146,531
Michael Vukovich, director/schools………………………..$145,549
Kevin Biggs, Roosevelt High principal……………………..$143,798
Paula Williamson, Lincoln High principal………………..$143,798
Sheila Mason, director/human resources……………….$142,330
Tiffany O’Hara, director/human resources……………..$141,965
Polk County
Gregory Schmunk, medical examiner…………………….$268,047
Mark Wandro, county manager……………………………….$218,805
John Sarcone, county attorney………………………………..$206,787
Joshua Akers, assistant medical examiner…………….$180,250
Nan Horvat, county attorney’s office………………………$175,769
Ralph Marasco, county attorney’s office…………………$175,769
Thomas Miller, county attorney’s office………………….$175,769
Jeffrey Noble, county attorney’s office……………………$175,769
Daniel Voogt, county attorney’s office……………………$175,769
James Ward, county attorney’s office……………………..$175,769
Kevin Schneider, sheriff……………………………………………..$172,070
Anthony Jefferson, IT department…………………………..$161,227
Bob Rice, public works director………………………………..$161,227
Keith Olson, treasurer’s office……………………………………$153,692
Betty Devine, family and youth services ………………..$153,692
Kurt Bailey, public works office…………………………………$153,692

The Godfrey decision

The Chris Godfrey lawsuit should never have happened.

Former Gov. Terry Branstad should never have tried to fire the head of the Workers Compensation office, who was in the middle of a fixed six-year term.

Then, when that didn’t work, the then-governor shouldn’t have cut Godfrey’s salary.

Then, when Godfrey sued, the then-governor should not have insisted that he and the state be represented by costly outside lawyers rather than the state attorney general.

Then the state should have settled the case before it got out of hand.

Then the ex-governor shouldn’t have — in the eyes of the jury — lied on the stand.

That was then.

This is now:

Now, the state owes Godfrey $1.5 million in damages established by a state-district-court jury last month in the seven-and-a-half-year-old case alleging discrimination and retaliation against Godfrey, a holdover Democrat and the only openly gay official in the Republican administration in Iowa. “The state” means taxpayers.

Now, the state owes the outside lawyers well over $1 million — probably something closer to $1.5 million, since all the bills aren’t in yet. “The state” means taxpayers.

Now, the state owes Godfrey’s lawyers an amount to be determined — but a good guess would be something close to $3 million. “The state” means taxpayers.

Now, the ex-governor and Brenna Findley Bird, his one-time general counsel, might be on the hook personally for at least some of those costs. That’s an open issue.

Now, the ex-governor will end his life of public service with an asterisk by his name, calling the attention to the fact he is — by jury verdict — a man who didn’t want to employ gay people. (“Terry Branstad was the longest-serving governor in the history of the nation and was Ambassador to China in the Trump Administration.” *He was adjudged in 2019 to have discriminated against and retaliated against an employee who was gay.”)

Today, the taxpayers of the state of Iowa appear to be on the hook for at least $6 million in costs and damages associated with the case.

Six million dollars in a case that was triggered by a mean-spirited administration that put in a mean-spirited pay cut that totaled just $150,000 over four-and-a-half years.

Six million dollars would pay full room, board and tuition for a year for about 275 Iowa students at a state university.

Six million dollars would pay for more than 125 much-needed social workers for the state of Iowa, or more than 125 firefighters, or more than 100 school teachers.

Six million dollars would pay for filling 60,000 potholes in the state of Iowa.

Now, there is talk that the state will appeal the case. That is sheer idiocy.

First of all, it’s unclear what the chances of overturn are. Judge McCall’s instructions to the jury were clear and unambiguous, and the verdict from the eight-person jury was unanimous.

Second of all, win or lose, the state’s cost of pursuing the appeal will be borne by taxpayers, and if the verdict is upheld, the taxpayers will have to pick up lawyer Roxanne Conlin’s costs as well. All told, add another half-million dollars. Or more.

Enough is enough.

There are lessons — expensive lessons — to be learned, but after seven-and-a-half years, the main one is this:

The wheels of justice turn slowly.

But they turn.

—Michael Gartner

(Disclosure: I was called as a witness near the end of the trial to verify that a document I had written about and had in my possession and was sought by the plaintiff was a true copy of the Republican State Platform of 2010 and that I had retrieved it at the time from the website of the state Republican Party.) ♦

But….

Former Gov. Terry Branstad, testifying about gays who have worked for him during the discrimination lawsuit brought by Chris Godfrey:

“Doug Hoelscher, he grew up on a farm up here in Hamilton County, Iowa farm kid, he’s gay, but he’s somebody that I respect a great deal….”

But? ♦

Should Branstad pay?

Chris Godfrey was awarded $1.5 million from the jury for past and future emotional distress.

If the verdict stands, the taxpayers will pay for that and for the $4.5 million or so in legal costs for both sides.

Is it possible that former Gov. Terry Branstad and his former counsel Brenna Findley Bird will end up paying part of that?

Government employees are indemnified against damages arising from actions done in the scope of their employment. But are discrimination and retaliation actions done “in the scope of employment?” Who has a job description calling for him or her to discriminate or retaliate?

The issue arose five years ago in the Godfrey case itself, in a narrow question about a related Attorney General’s ruling that went to the Iowa Supreme Court. With a five-to-two majority, Justice David Wiggins noted that “it has always been the law of this State that when a public employee acts outside the scope of his or her employment, the employee is personally responsible for the cost of defense and any damages he or she may have caused.”

Earlier this year, the state entered into two settlements totaling $4.1 million in relation to sexual harassment allegations against Dave Jamison, then the head of the Iowa Finance Authority. The state paid, but Rob Sand, who was elected State Auditor last fall and who is a member of the State Appeal Board that has to approve settlements, voted against paying.

Before the meeting, he wrote his colleagues questioning whether the state should pay. Under the Iowa Code, he noted, the state does not have to pay if the act for which the settlement was made “constituted a willful and wanton act or omission or malfeasance in office.” The implication was clear: sexual harassment is wanton and willful.

Add that to the Wiggins ruling, and you have at least an argument.

Then there’s this: In 2015, about halfway through the Godfrey case, lawyers for Branstad told the court that the litigation was “frivolous” and was “contrived for the purpose of harassing and oppressing” the defendants. Because of that, the Branstad lawyers said in a court filing, Godfrey should have to pay “reasonable attorney’s fees” to the defense.

Of course, that was their view when they thought they were winning. ♦

A drama avoided

Political junkies could hardly wait to attend the trial the day Roxanne Conlin was scheduled to question Terry Branstad on the stand.

Conlin, a former U.S. Attorney, was the Democratic candidate for governor against incumbent Branstad in 1982. He defeated her, getting 548,313 votes to her 483,291. There’s no love lost between them.

So Iowans with long memories and with nothing better to do were looking forward to the confrontation between a 75-year-old skilled lawyer who is quick on her feet and a 72-year-old former governor who is well-liked and admired in every corner of the state. Conlin is the first woman to be elected president of the Association of Trial Lawyers of America. Branstad is the man who served longer as governor than anyone else in America. They know the territory.

But it was not to be. Conlin was felled by dust and contaminants from the construction going on at the courthouse, but since Branstad had flown back from his ambassadorial post in China for the testimony, the appearance could not be delayed. So Paige Fiedler stepped in for Conlin at the last minute, having to learn the complexities of a seven-year-old trial in just two days.

She couldn’t have done better. She was in total command. She flummoxed the governor. Several times, he preferred to talk about his accomplishments as governor rather than answer her questions. Several times, Judge McCall had to remind Branstad that he needed to answer Fiedler. Several times, he simply couldn’t.

Maybe it was better that way, without the side show. Maybe it focused folks on what they should have been focusing on. Still, it could have been electric. ♦

The instructions

When testimony ended, Judge Brad McCall gave the jury 40 pages of instructions.

Instruction No. 19: Your verdict must be for Plaintiff and against Defendant State of Iowa on Plaintiff’s claim of sexual orientation discrimination if Plaintiff has proven each of the following elements by a preponderance of the evidence:

1. Defendant took adverse action against Plaintiff; and

2. Plaintiff’s sexual orientation was a motivating factor in Defendant’s action.

Instruction No. 20: Your verdict must be for Plaintiff and against Defendant State of Iowa on Plaintiff’s claim of retaliation if Plaintiff has proven each of the following elements by a preponderance of the evidence:

1. Plaintiff engaged in a protected activity;

2. Defendant took adverse action against Plaintiff;

3. Plaintiff’s protected activity was a motivating factor in Defendant’s decision to take the adverse action.
“Protected activity,” the instructions noted, includes the right to complain about being discriminated against or retaliated against. ♦