December 16, 2010 in Idaho

Preliminary ruling favors fired ITD director

By The Spokesman-Review
 

BOISE - A federal judge has issued a proposed order siding with fired Idaho Transportation Director Pam Lowe on a key point in her wrongful-firing lawsuit, her argument that she wasn’t an “at-will” employee who could be dismissed without cause.

But U.S. Magistrate Judge Ron Bush also invited Lowe and ITD to submit written arguments in response to his proposed decision; he gave them until Jan. 14 to submit those, before he’ll issue his ruling. If the judge sticks with his initial ruling, the state’s main defense in the case will be nullified.

“We were pleased with the ruling,” said Erika Birch, Lowe’s attorney. “We’re happy with it and hope it sticks.”

At issue is a 1974 law that created the director’s post, that says, “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.”

The state argued those four reasons are just examples, and the important part is “at the pleasure.” Therefore, ITD argued, the director could be fired for any reason or no reason - and couldn’t sue over it. But the judge, citing his own extensive research not only into similar cases but also into the rules and laws for directors of numerous other Idaho state agencies, disagreed.

“If the ITD Director’s performance falls within one or more of those categories, the ITD Board may choose to dismiss its director, but is not required to do so,” he wrote in his Proposed Memorandum Decision and Order. “Conversely, the ITD Board may not remove the Director for any reason other than one or more of the four specified bases for removal.”

The “at the pleasure” part means the board, rather than the governor, appoints the director, Bush wrote.

The judge added, “Such a reading appropriately gives significance to each word of the statute.”

The ruling, if finalized, would be a significant win for Lowe, who contends her firing came because she tried to scale back a big contract with politically well-connected firms; that she was fired without cause and without being allowed a hearing; and that she was discriminated against because she’s female. She was the first woman to head the Idaho Transportation Department; she’s since been replaced by a man who’s being paid $22,000 a year more than she made.

The department didn’t cite any of the four reasons from the law in dismissing her.

Instead, the ITD board said in 2009 that Lowe’s firing would “help the department continue improving customer service, economy of operations, accountability and our relations with the Legislature.”

The state, in legal documents filed in the case, contends that Lowe was fired for not adequately dealing with the state Legislature, which it contends meant she was doing a poor job despite good reviews for her internal management of the department.

In support of her argument, Lowe submitted the Legislature’s Statement of Purpose for the 1974 law, which said the director “shall serve at the pleasure of the board and may be removed only for stated cause.”

Judge Bush noted in his proposed ruling, “Idaho’s history always has been marked by regional interests competing for transportation project dollars.” The way the Legislature in 1974 redesigned ITD, setting up a governor-appointed, politically and regionally balanced board that then appointed a professional director, was designed to insulate the department and its director from political pressures, he wrote.

“The Legislature understood that … the Director needed to be able to professionally manage ITD and candidly advise the Board without the fear of political reprisal,” the judge wrote. To guard against ensconcing an “incompetent or irresponsible” director with those protections, “the Legislature identified four specific points of unsatisfactory performance upon which the Board could, in the exercise of its discretion, choose to discharge the Director.”

Birch said, “It was a very comprehensive analysis of the issue, and we feel like it’s a proper ruling, even though it’s preliminary - that it’s the correct result.” Birch said the ruling “recognizes why the Legislature would require cause to terminate the director, given the vulnerability to political pressures, which is exactly what was at play in Pam’s situation. ”

The decision on the “at-will” question would settle a key point underpinning Lowe’s case. Still to be decided after that are the other issues, including the gender discrimination claim.


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