January 11, 2010 in Idaho

Idaho defends firing of ITD chief

By The Spokesman-Review
 

BOISE - 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.

The argument comes in the state’s response to a wrongful-termination lawsuit filed in federal court by former Idaho Transportation Department Director Pam Lowe. Lowe contends 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.

“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, filed over the weekend in federal court in Boise.

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.

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.”

The state’s answer to Lowe’s lawsuit was filed over the weekend by Special Deputy Attorney General Newal Squyres of the Boise law firm Holland & Hart, who is the current president of the Idaho State Bar. Squyres said in a statement, “As our answer to the complaint from Ms. Lowe shows, the allegations have no merit. … We will vigorously defend the decisions of the Idaho Transportation Board in court.”

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 contractor’s campaign contributions to the governor and other state officials - that they occurred two years before the firing and thus are unrelated. It also contends the issue of the contractor was unrelated to Lowe’s firing, and 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.”


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