IOWA CITY, Iowa (AP) — Iowa continues to maintain an internal "do not rehire" list of fired employees who are barred from returning to state employment, even though judges have raised questions about its legality, according to a review by The Associated Press.
Since 2009, judges have said three times that the Iowa Department of Administrative Services doesn't have "the statutory or regulatory authority" to issue lifetime employment bans against fired workers, but the list has steadily grown, records show.
As of January, 1,471 people were barred from being reconsidered for executive branch employment, data show. That includes 250 added since Gov. Terry Branstad took office in 2011, more than twice as many as his predecessor's first three years.
The growth of the two-decades-old "exclusion list" has occurred even though the state lacks policies for how workers' names get added and removed. The practice is barely known outside of the human resources officials who manage the database, which they say helps identify bad workers and saves taxpayer money.
Critics say the list can be unfair, arguing that it's unclear whether all fired workers are excluded regardless of specific conduct or performance problems.
"There's a lot of room for inconsistencies, favoritism, petty retribution, discrimination," said Des Moines civil rights attorney Tom Newkirk, who's analyzed the list.
A civil lawsuit in December brought by a legal secretary who claimed she was unfairly on the list for years without her knowledge raised questions about the list's management. The AP obtained data and records about the list through the public records law.
Some workers say they ended up on the list, which includes firings dating to 1993, without their knowledge. Others have complained they were added despite being assured by supervisors they could seek future state employment or remain on the list after a long-ago firing.
The list includes workers fired for cause, workers fired during probationary periods and some who resigned and agreed not to resume state employment.
Steven Kreisberg, collective bargaining director for the American Federation of State, County and Municipal Employees in Washington, D.C., said he hadn't heard of a similar practice elsewhere. He said fired employees routinely agree not to again seek state employment, but Iowa's practice goes beyond that.
"To be systematically blacklisted from employment, it's really un-American," he said, adding it was particularly problematic that Iowa's list includes probationary workers who lacked job protections.
Department of Administrative Services spokesman Caleb Hunter insists the state informs people when they're added and they can appeal administratively.
Spokesman Jimmy Centers said Branstad wants to change a law that keeps details of misconduct confidential so taxpayers can "understand why some former employees are on the exclusion list."
Tereasa Jefferson, the legal secretary who is black, argued during the December trial that a white manager fired her during a probationary period in 1999, and had her added to the list. Jefferson said she unsuccessfully applied for positions repeatedly before learning in 2005 she was barred.
"I applied and I applied and I applied and I'm like, 'What the heck is going on?'" she said.
Jefferson successfully appealed to have her name removed, allowing her to return to state employment in 2007. Jurors rejected her discrimination claims. Jefferson's attorney, Newkirk, said the case showed the list had been handled in a "slipshod manner at best."
"There was nothing offered in writing at all, in the last 15 years, that suggested how the policy of the exclusion list has been applied," he said.
The department claims the authority to maintain the database under an administrative rule that says its director "may refuse" to consider applicants who have previously been discharged. But in 2009, administrative law judges Laura Lockard and Kerry Anderson concluded in separate cases the rule gave DAS the discretion to consider rejecting fired workers only when they applied again.
"The department does not have the statutory or regulatory authority to bar individuals who have not made application for a specific position from employment in state government," Anderson wrote.
In more than a dozen appeals since, the department has lifted statewide employment bans or limited them to specific agencies.
Nonetheless, some ex-workers have still been told they're barred from all future state employment. Anderson chastised DAS again in 2011, concluding the ban wasn't "authorized by either statute or the department's own rules."
Bernie Nesbit, 50, learned he was on the list last fall, when his job application for the Mitchellville prison was rejected. He'd been fired from the Newton Correctional Facility during a probationary period in 1999 over conduct-related allegations that he disputes.
Nesbit said he'd like a second chance at state employment, but a judge upheld his ban in December. He visited with a Branstad aide Wednesday in an unsuccessful attempt for a reprieve.
"I thought there would be some way to correct it or get me off the list," he said. "And the governor's case worker said there's nothing he could do."
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