Story County attempts to undermine federal case for not disclosing Fitzgerald e-mails

Federal attorneys’ claim that FirstNet board member Paul Fitzgerald was acting as a federal employee when using his work e-mail account for Story County, Iowa—where Fitzgerald is the elected sheriff—to conduct FirstNet business is erroneous, because federal law prohibits federal employees from holding elected office at the state or local levels, according to the most recent filing by Story County.

At issue is whether Story County can release 63 FirstNet-related e-mails to Politico reporter Tony Romm, who last summer requested copies of the e-mails in an open-records filing. Story County agreed to release the e-mails to Romm in accordance with state law, but the U.S. government received an injunction blocking this action. Federal attorneys have argued that Fitzgerald was acting as a federal employee when sending and receiving e-mails related to FirstNet, so the Iowa state laws do not apply in this case.

Federal attorneys’ filings do not state whether the Fitzgerald e-mails would be released if the court rules in favor of the U.S. government. However, the filings do reiterate the fact that Congress exempted FirstNet from the Freedom of Information Act when it created the organization last year.

But, in a brief submitted Friday to a federal district court in Iowa, Story County Attorney Stephen Holmes asserts that it is legally impossible for Fitzgerald to be a federal employee, because that would be a violation of the Hatch Act, which was passed initially in 1940 to limit federal employees’ political activity at the state and local levels.

Under the Hatch Act, a federal employee is “prohibited from running for the nomination or as a candidate for election to a partisan political office,” according to the Story County filing. The Hatch Act defines a “partisan political office” is one in which a candidate represents a political party that had a candidate for U.S. President that received elector votes, the filing states.

When Fitzgerald was named to the FirstNet board in August 2012, he was the incumbent Story County sheriff running for re-election as a Democrat. Fitzgerald won the election in a landslide in Nov. 6, 2012, according to supporting documents in the Story County filing.

“So, logically, one must conclude only one of the following: (1) that the federal government did not perceive Sheriff Fitzgerald to be a federal employee at the time of his appointment. To do so, would violate federal law,” according to the Story County filing. “Or, (2) the federal government did perceive the sheriff to be a federal employee and therefore, permitted a violation of federal law when the sheriff ran for re-election in a county partisan election in November of 2012.”

Regardless which conclusion is reached, the argument that Fitzgerald is a federal employee “must fail” and the e-mails sent and received from the Story County e-mail address should be subject to Iowa open-records law, according to the Story County filing.