Good news today for Gov. Terry Branstad on the “hard 90″ front.
His appointed special investigator, former Iowa Supreme Court Chief Justice Louis Lavorato, has found that the governor’s office had no involvement in the firing of a longtime DCI agent who called in the troopers to pursue Branstad’s speeding SUV back in April.
Iowa Gov. Terry Branstad and his staff were not involved in a decision to fire a veteran state investigator, according to an independent investigation by a former Iowa Supreme Court justice.
Former Chief Justice Louis Lavorato’s five-page report, released Wednesday, says Branstad and his staff did not interfere with a Department of Public Safety decision to fire Larry Hedlund, who had complained that a state trooper driving Branstad in April wasn’t stopped for speeding.
“Moreover, I found no direct evidence that those who took part in the investigation and in the decision to terminate Mr. Hedlund’s employment retaliated against him for his activities in reporting the speeding incident,” Lavorato wrote.
However, the justice noted that most retaliation claims are proved with circumstantial evidence, some of which he found in his month-long investigation.
Jennifer Jacobs at The Des Moines Register takes a similar tack:
An independent reviewer appointed by Iowa Gov. Terry Branstad has concluded that the governor had nothing to do with the firing of a state law enforcement official who reported seeing the governor’s vehicle speeding at least 19 mph over the speed limit.
There is also no direct evidence that retaliation over the speeding incident played a role in the firing of Iowa Division of Criminal Investigation Supervisor Larry Hedlund, but reviewer Louis Lavorato could not reach a conclusion on whether his termination was justified.
In a report release this morning (see documents below), Lavorato wrote: “I am convinced no one in the governor’s office directed or interfered with the Internal Affairs investigation or took part in the decision to terminate” Hedlund.
Lavorato continued: “The governor’s position, which I determined was painstakingly followed by his staff, was to have a ‘hands off’ approach to the investigation and decision to terminate Mr. Hedlund’s employment.”
No interference. Hands off. No influence. The governor finally gets a whole slug of stories and headlines vindicating his office in the Hedlund affair. Lavorato is well-respected, so his judgment will carry public weight.
And the governor will, no doubt, celebrate by having his trooper do a bunch of squealing doughnuts in the Capitol parking lot. Kidding.
There will be skeptics who argue that Branstad got the outcome he wanted from his hand-picked investigator, paging Jack Hatch, but they’ll be bit players in today’s story.
Still, this isn’t over. Who says? Why, Justice Lavorato, of course.
A key excerpt from Lavorato’s report (posted below in full). Sorry so lengthy:
In my interview of the people conducting the investigation of the charges against Mr. Hedlund and those responsible for the decision to terminate his employment, I found no direct evidence of retaliation related to his actions regarding the speeding incident. Nor did I find any such evidence in the Internal Affairs’ report or in any documents or electronic messages that I was provided.
However, as I alluded to earlier, the fact that I found no such direct evidence does not end the inquiry. As I mentioned, a party alleging retaliation must in most cases rely on circumstantial evidence. In the end, a jury, if the case gets that far, must decide this issue.
Because I could find no direct evidence that the termination resulted from Mr. Hedlund’ s actions in reporting the speeding incident and threatening to report it to outside authorities, he will have to rely on circumstantial evidence. The most critical event that Mr. Hedlund might rely on occurred on May 1, 2013, five days after the speeding incident. On that date, Internal Affairs issued Mr. Hedlund a Notice of Investigation, attached to this report as Exhibit C, which alleged violations of the following rules of the State of Iowa Employee Handbook: “12-02.01-Duty Periods-Leave of Absence; 16-
01.0 l (IIl)(C)-Unbecoming or Prohibited Conduct; 16-01.0l (IIl)(D)-Performance of Duties; and 16-01.01(IIl)(I)-Courteous Behavior.”
The Notice lists the details of the allegations as follows: “It is alleged that SAC Hedlund was disrespectful and insubordinate during a conference call with DCI leadership on 04/18/2013. It is also alleged that SAC Hedlund had operated his state vehicle during a period of approved leave status without updating his supervisor on any change in duty status or assignment on 04/26/2013. In addition, it is alleged that SAC Hedlund failed to request and receive approval for leave before taking the leave on 04/30/2013. Finally, SAC Hedlund is alleged to have engaged in conduct that impairs the operations of the Department.”
The complaint relating to “unbecoming or prohibited conduct,” “performance of duties,” and “courteous behavior” was filed on the day of the speeding incident but shortly before the incident. Obviously, the motive for filing this complaint could not have been the result of retaliation relating to the speeding incident.
The balance of the charges having to do with operation of Mr. Hedlund’s state vehicle, failing to request and receive approval for leave, and engaging in conduct that impairs the operations of the Department were filed as stated on May 1, 2013, five days after the speeding incident. On the same day, he was placed on administrative leave and taken out of service. The termination of employment occurred on July 17, 2013, some 82 days following the speeding incident. The temporal proximity here is certainly crucial to Mr. Hedlund’s retaliation charge and will probably be a factor in this case. However, as I mentioned, that alone is not enough to establish retaliation. Mr. Hedlund must show other circumstances along with the temporal evidence to prove his claim.
The defendants listed in Mr. Hedlund’s lawsuit will undoubtedly rely on these charges both before and after the speeding incident-and the evidence to support these charges to establish that they had legitimate nonretaliatory reasons for the termination of employment. In my interviews with the parties involved in the investigation and in the decision to terminate Mr. Hedlund’s employment, I asked them why they acted so quickly after the speeding incident. I also asked them why they did not consider any lesser discipline like demotion or suspension. Unfortunately, their responses will have to wait until the responses are a matter of public record. But their responses will also play a part in a jury’s determination whether there actually was retaliation in connection with the speeding incident.
Other circumstantial evidence besides the temporal evidence that might play a role on the issue of retaliation in connection with the speeding incident includes, among other things, the following: (1) the charges that were filed on May 1 include Mr. Hedlund’s activities that put him at the time and place when he saw the Governor’s vehicle speeding, (2) his 25 years of service with no prior discipline, (3) the severity of the discipline, (4) whether there was unequal treatment for similar conduct, (5) the fact that Commissioner London serves at the pleasure of the Governor, and (6) several months before the speeding incident, Mr. Hedlund had complained about the actions of his superiors.
In summary, I again want to make it clear that this report in no way passes judgment on whether Mr. Hedlund’s termination of employment was justified. The issue for me was very limited: Was there any retaliation for Mr. Hedlund’s activities in reporting the speeding violation and his threat to report the violation to outside authorities? On this point, I am convinced no one in the Governor’s office directed or interfered with the Internal Affairs’ investigation or took part in the decision to terminate Mr. Hedlund’s employment.
Moreover, I found no direct evidence that those who took part in the investigation and in the decision to terminate Mr. Hedlund’s employment retaliated against him for his activities in reporting the speeding violation. Nevertheless, I cannot and do not reach a conclusion on this issue because retaliation is seldom established directly but in most cases must depend on circumstantial evidence.
Basically, after interviewing the
principles principals, (sans Hedlund, who declined Lavorato’s invite), and reviewing the official paper trail, Lavorato found no direct evidence that Hedlund’s firing was in retaliation for the speeding debacle. Which tells us one of two things — that the firing truly was not in retaliation, or that the principles principals are smart enough not to admit to retaliation or put it in writing. The paper trail for unjustified retaliatory firing tends to be on the thin side. That’s why, as Lavorato says, these claims depend largely on circumstantial evidence.
So this saga is still rolling on toward court, where a jury may be asked to decide if the direct outweighs the circumstantial, or the other way around. If it actually makes it to a courtroom, it’s going to be a very interesting drama. But unlike the governor’s SUV, the legal process will not move at a hard 90. That keeps the story alive.
But after many lousy news days since the speeding saga broke, Branstad finally had a good one.