December 17, 2010 in Idaho

Initial ruling helps ex-ITD director

Judge rejects state’s ‘at-will’ interpretation
By The Spokesman-Review
 

BOISE – A federal judge has issued a proposed order siding with fired Idaho Transportation Department Director Pam Lowe on a key point in her wrongful-firing lawsuit – 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 the 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 the 1974 law creating the director’s post, saying “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, the ITD argued, the director could be fired for any reason or no reason – and couldn’t sue over it. But the judge disagreed, citing similar cases and the rules and laws for directors of numerous other Idaho state agencies.

“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 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 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 She was the first woman to head the Idaho Transportation Department; she since has been replaced by a man who’s paid $22,000 a year more than she made.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 Legislature, which it contends meant she was doing a poor job despite good reviews for her internal management of the department.

The way the Legislature in 1974 redesigned ITD, setting up a politically and regionally balanced board that then hired a professional director, was designed to insulate the department and its director from political pressures, Bush wrote.

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.”

Still to be decided are the other issues, including the gender discrimination claim.

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