Gov. Butch Otter's decision to turn down a scheduled 3 percent pay raise this year has run into an unexpected roadblock: An Idaho Attorney General's opinion has concluded that he can't do it. In response to a request from a state legislator, the AG's office analyzed constitutional requirements regarding pay for lawmakers and state constitutional officers. The state Constitution requires the Legislature to set the pay amounts for constitutional officers including the governor, and to do it before they take office. Their pay can't be changed during their term. So a law passed before Otter took office, which mandates that his 2008 salary of $108,727 rise by 3 percent in 2009 to $111,989, is the law - and Otter has no power to change it.
"The governor was disappointed," said his budget director, Wayne Hammon. "We're bound to do it, so he's going to take the money and then donate it to the scholarship fund." Hammon said Otter will donate his raise to either the state's Opportunity Scholarship fund, or to the Governor's Cup Scholarship Fund. Both are for Idaho students attending Idaho colleges. "Secondly, he's going to propose during this legislative session a constitutional amendment to change that law," Hammon said.
The governor favors allowing the state Board of Examiners, which consists of the governor, attorney general and the secretary of state, to opt out of previously approved raises for all state constitutional officers. The Legislature has such opt-out authority for its own raises, which are recommended by a citizens commission and take effect unless lawmakers pass a concurrent resolution to block them. This year, the commission is recommending 5 percent raises, but lawmakers in both parties say they'll reject them due to the state's worsening budget picture and the likelihood that lawmakers won't fund raises for state employees next year. Two other state constitutional officers, former Lt. Gov. Jim Risch and state Superintendent of Schools Tom Luna, also had planned to reject their raises this year, but now legally can't.
In the Attorney General's opinion, Deputy Attorney General Bill von Tagen wrote, "The Constitution specifically prohibits the Legislature, during the term of the elected official, from 'zeroing out' an increase that has been enacted properly before that term began. This process insures that the salary of an officer is not increase or diminished in the officer's term ... The restriction within the Constitution was intended to prevent the salaries of officers from becoming political bargaining chips. Additionally, the office survives whoever holds it. Therefore, a subsequent holder of the office should not be hindered by the political maneuvers of the current holder of the office."
Rep. Darrell Bolz, R-Caldwell, vice chairman of the House Appropriations Committee, requested the AG's opinion to address a series of questions about options for the Legislature and its joint budget committee in dealing with pay issues this year. The Attorney General's office concluded that the findings had such direct bearing on the state budget process that it forwarded them to the offices of the governor, all state constitutional officers (statewide elected officials) and the legislative budget office.