Clark Kauffman

ckauffman@dmreg.com

Gov. Terry Branstad's administration has changed a high-ranking administrative law judge's position to "at-will" status — a move that effectively strips the job of protection from political influence.

It comes at a time when his administration already is facing criticism and one lawsuit alleging an improper or illegal effort to move state jobs from merit status to at-will. Workers with merit status can only be fired for job performance issues, while at-will workers are treated the same as political appointees and can be terminated for almost any reason, without showing just cause.

"This sets a really dangerous precedent," said Rep. Bruce Hunter, a Des Moines Democrat on the House Labor Committee. "When you turn this job into an at-will position, the judge is serving at the whim and desires of the governor rather than deciding cases on their merit."

Senate President Pam Jochum, D-Dubuque, said that by making the chief administrative law judge at the Iowa Department of Inspections and Appeals an at-will employee, Branstad is exposing the judge to the "political whims of whoever happens to be governor," both now and in the future.

"To me, this is not a good idea," Jochum said. "This undermines a judge's ability to be unbiased and to make a good decision based on the facts, without having to deal with pressure from politicians in making that decision."

The position of chief administrative law judge is currently vacant, with John Priester filling in on an "acting" basis. The current job listing makes note of the position's new status as "at-will."

Branstad spokesman Jimmy Centers said the change is intended to help "ensure employees are properly classified in accordance with Iowa law," but did not elaborate.

Danny Homan, president of AFSCME Iowa Council 61, which represents many state employees, said most state workers — and judges in particular — should be protected from political pressure.

"When any job loses merit protection and becomes at-will, that means there could be — or would be — some sort of political pressure applied to that job if that person isn't doing what the powers-to-be want done," he said. "We shouldn't turn this state back into a patronage system. That's what the merit system was created for. It was so we would not have state employees appointed by whichever party controlled the governor's office."

The chief administrative law judge in the inspections department wields a considerable amount of power. Although many of the cases heard by administrative law judges involve Iowans appealing the loss of their welfare benefits or driving privileges, others involve people accused of child abuse and nursing homes sanctioned for poor quality care.

Historically, the 18 administrative law judges and the chief judge who hear those cases have been shielded from potential political pressure by their status as merit employees. In fact, one provision of Iowa law specifically states that "administrative law judges shall be covered by the merit system" while working for the inspections department.

"I think that law is on the books for a very specific reason: to protect the judges from outside influence," Rep. Hunter said.

When asked about that law, the governor's spokesman cited a different statute that exempts from merit protection all division administrators and so-called "confidential employees," such as state-employed lawyers who share confidential information with a department director and have a duty to refrain from disclosing it.

In December 2012, the Branstad administration greatly expanded the definition of "confidential employees" to include such positions as nurse supervisors at the Iowa Veterans Home.

The chief administrative law judge at the inspections department not only hears and decides some of the cases brought by Iowa businesses and individuals, but also supervises and coordinates the handling of cases heard by other administrative law judges within the department. The new job posting says the chief judge will continue to conduct case hearings while supervising the other judges.

It's not the first time the Branstad administration has attempted to make a chief administrative law judge an at-will employee.

In April 2013, the administration notified Joseph Walsh, then the chief administrative law judge at Iowa Workforce Development, that he would soon become an at-will employee. Walsh challenged the move, citing federal labor laws that prohibit such a move to protect the integrity of the judicial process. The administration backed down, but four weeks later included Walsh in a layoff of state workers, citing budgetary reasons.

Walsh is now suing the state, alleging he was targeted for dismissal after resisting pressure from a Branstad appointee to decide more unemployment cases in favor of businesses and against Iowa workers — an allegation the governor has denied.

Earlier this year, The Des Moines Register found that almost 300 state jobs were moved from merit to at-will in the previous 36 months. In 2013 alone, the Branstad administration reclassified 198 jobs to at-will status.

Some legislators have publicly opposed the reclassification effort, likening it to a "spoils system" in which government jobs are awarded based on personal and political connections rather than qualifications. Hunter called it "an overt attempt to make sure employees are under (Branstad's) thumb and that they're not rocking the boat."

Jochum said the merit system was implemented in the 1960s under Gov. Robert Ray, a Republican.

"The whole idea behind it was to develop a sustainable, qualified, competent and educated work force in our state government," she said. "What I am seeing our current governor do today — well, it undermines that whole system."

At the federal level, administrative law judges are considered merit employees, so they enjoy a higher level of job protection than at-will employees. Even so, federal administrative law judges have long complained of interference by agency employers.

Paul Sheron, secretary-treasurer of a union that represents 2,500 administrative law judges in the federal government and District of Columbia, said judicial independence is critical to protecting the integrity of a system the public relies on for justice.

"This is about more than just protection of the judges," he said. "This is about protection of the public."

Randy Frye, president of the Association of Administration Law Judges, agrees.

"It is critical to a democracy to have independent judges," he said. "If you make these judges' positions at-will, it means that some political person can come along and decided they don't like their decisions and they can fire them. That's not what a democracy expects of its judiciary. They have to be independent in order to serve the public."

Frye said that even if no political pressure is exerted, the system is corrupted by the mere opportunity for that to happen, especially when judges are made at-will employees.

"Think about it," he said. "If you're a judge and you know that your boss can remove you if he doesn't like your decisions, well, human nature tells you that is going to most likely influence the way you make your decisions."

The chief administrative law judge for the U.S. Department of Housing and Urban Affairs, J. Jeremiah Mahoney, is currently suing his employer, claiming his supervisor interfered with his independence by selectively assigning cases based on political considerations.

In some cases, the pressure applied to judges isn't politically motivated, but can still influence the decisions made.

Last year, Congress held hearings on allegations that the pressure to reduce an enormous backlog of Social Security disability benefit claims has resulted in administrative law judges awarding more applicants the benefits they seek. Judges told lawmakers that the rulings favoring beneficiaries are far less time consuming than rulings that deny benefits.

A former Social Security judge, J.E. Sullivan, told the House Oversight and Government Reform Committee this has created "a push-to-pay mentality." Larry Butler, a Florida judge, told the committee that case decisions have become a way of "paying down the backlog."