Eye On Boise

State: Law’s four grounds for ITD director dismissal are mere ‘examples’

Posted by Betsy

Jan. 11, 2010 7:40 a.m. • 6 comments

The state of Idaho contends that the four grounds for dismissal of the state’s transportation director listed in state law are mere “examples,” and the state can fire its transportation director for any reason or no reason at all. “Although the statute provides examples of reasons for which the Director ‘may be removed by the board,’ including inefficiency, neglect of duty, malfeasance or nonfeasance, these terms are not a limitation on the board’s authority and do not alter the fact that Plaintiff served ‘at the pleasure of the board,’ ” the state argues in its response to a wrongful-termination lawsuit filed in federal court by former Idaho Transportation Department Director Pam Lowe.

The law, Idaho Code 40-503, states, “The director shall serve at the pleasure of the board and may be removed by the board for inefficiency, neglect of duty, malfeasance or nonfeasance in office.” Legal experts told The Spokesman-Review in August that Idaho’s law is contradictory, but suggests the four grounds are the only reasons a director may be fired.

Lowe has alleged she was fired, despite positive performance reviews, for resisting pressure to favor a politically well-connected contractor who was a big contributor to Gov. Butch Otter, and was discriminated against for her gender; she was the department’s first female director. Her suit notes that the board decided to pay her male replacement $22,000 a year more than it paid her. The board didn’t cite any of the four statutory reasons in dismissing Lowe, instead saying her firing would “help the department continue improving customer service, economy of operations, accountability and our relations with the Legislature.” Click below to read more.

In the state’s answer to Lowe’s lawsuit, filed over the weekend by Special Deputy Attorney General Newal Squyres of the Boise law firm Holland & Hart - the current president of the Idaho State Bar - the state says Lowe was fired “because she failed to perform the job of Director and failed to fully perform the duties and responsibilities of the position,” particularly in the area of communicating with the Legislature. The answer cites legislation introduced last session to remove hiring power over the director from the state Transportation Board and transfer it to the governor as proof Lowe wasn’t doing a good job, along with a $10 million error the department made last year in one of Otter’s key transportation bills; the bill then failed. “She was unable to competently present ITD’s agenda and legislative proposals, resulting in a fundamental lack of confidence in the information she presented and an unusually high failure rate in ITD’s proposed legislation,” the response states.

It also denies that ITD board member Gary Blick, when the board was considering promoting Lowe to director, said, “No little girl would be able to run this department,” and asked, “What are we going to do when she decides to start a family?” The state said in its response, “Moreover, any such statements if made, which Defendants deny, would have been made more than 2-1/2 years before the Board’s decision to terminate Plaintiff and had no causal connection to the Board’s decision-making process to terminate Plaintiff as Director.” The response offers the same argument on the contractors’ campaign contributions to the governor and other state officials - that they occurred two years before the firing and thus are unrelated. It also asserts that Lowe’s lawsuit is “barred, in whole or in part, under the doctrine of sovereign immunity.”

As for paying the new male director more than Lowe, the response says, “Defendants hired the most qualified candidate for the position and agreed to pay the new Director a salary commensurate with the requirements of the position, which was determined based upon legitimate, non-gender-related reasons.” You can read the full response here, and Lowe’s federal court complaint here.

Six comments on this post so far. Add yours!

JamesBond on January 11 at 9:18 a.m.
Interesting. This position by ITD’s attorneys appears to conflict with this guideline issued by the Office of the Attorney General. See pages 3-4 specifically for similar language in statute. http://www2.state.id.us/ag/ops_guide_cert/1996/g090996.pdf
Sisyphus on January 11 at 10:35 a.m.
Way to go Bondo! Great cite.
spokelooneh on January 11 at 12:34 p.m.
Idaho ITD seems to going for broke in defending it’s actions, and that’s just exactly what’s going happen, breaking the bank as far as paying outside lawyers to defend their heinous action, and going to end up paying a huge settlement to Ms. Lowe.

Idiotic and arrogant.
Boise33 on January 11 at 3:45 p.m.
The state is certainly sparing no expense on lawyers (more wasted taxpayer money). Holland & Hart is high-priced and the specific attorney leading the charge on Lowe is president of the Idaho Bar. They must know their case is weak and are hoping to outspend Lowe in the court of law to try and guarantee a victory. I guess they’re hoping money talks and judges will listen. Let’s hope that’s not the case, although everything in Otter’s career points to the fact that he’ll do anything to win.
fortboise on January 11 at 5:42 p.m.
EVEN WHEN YOU’RE IN THE RIGHT, IT’S OFTEN CHEAPER TO SETTLE.

And the State looks a long way from being in the right, here. While we’re talking about a gazillion ways to save money in state government, here’s a no-brainer, Butch: TELL THE A.G. TO SETTLE WITH LOWE.
JamesBond on January 11 at 7:41 p.m.
The Governor is not using the Attorney General to defend the state in this case. Instead, ITD got a private outside attorney to defend itself. It’s going to cost a LOT of money. Hehehehe.