July 20, 2010 in Idaho

New questions in transportation department firing case

Judge deciding whether Lowe was at-will employee
By The Spokesman-Review
 
Courtesy photo photo

Pamela Lowe
(Full-size photo)

BOISE – A federal judge raised new questions in fired Idaho Transportation Director Pam Lowe’s wrongful firing lawsuit Monday, including one that could potentially delay the case for years.

Meanwhile, the Idaho Transportation Department acknowledged that a controversial management contract that Lowe contends she was fired for trying to scale back has now swelled to $85 million.

The department signed an additional contract with the “Connecting Idaho Partners” group, which consists of CH2M Hill and URS Corp., formerly Washington Group, in April for $14 million for management work related to the next $228 million worth of GARVEE bonds. Those bonds finance highway projects by borrowing against future federal highway payouts. April’s contract was on top of a $26 million contract signed in June of 2008, and a $45 million pact signed in August of 2006.

“We made reductions where possible,” said Jeff Stratten, ITD spokesman, noting that $7 million in work was pulled from the first contract and handed back over to ITD staff. The second contract, in 2008, started around $30 million, but was scaled back the same way to $26 million. “We’re following the legislative intent by bringing as much work back to ITD as possible,” Stratten said.

Lowe’s wrongful termination lawsuit alleges, in part, that the Otter administration pressured her not to trim back the contract – even though lawmakers called for cutbacks – and when she persisted, she was fired.

“It did little to forward her political clout with some,” Lowe’s lawyer, Erika Birch, told a federal court on Monday.

Lowe also has charged that she was fired without cause and without being allowed a hearing, and that she was discriminated against because of her gender as the department’s first female director. She had worked for the department for 13 years before her appointment as director, a post she held for 2  1/2 years.

Lowe was in court Monday to ask the judge to decide a key point in her case now – whether or not the state’s transportation director is an at-will employee who can be fired for any or no reason. That’s the position the state has taken in the case.

A specific state law says the transportation 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 Idaho Transportation Board cited none of those grounds when it fired Lowe last year.

Federal Magistrate Judge Ron Bush raised a series of new questions, including whether Lowe actually was a classified state employee entitled to specific hearings and appeals; whether her lawyers’ arguments in her wrongful firing case would have entitled her to serve in the position for life; and whether the at-will question should be referred back to the Idaho Supreme Court.

The judge raised that possibility though both sides said they thought the case was properly before the federal court, and Birch said such a move would “significantly delay this case by years.” Bush responded, “I’ve considered that, and that’s part of what I’m weighing.”

B. Newal Squyres, a private attorney representing the state, told the court that the four reasons in the law are just examples of why a director can be fired. “They’re not a limit on the board’s authority,” he said.

The judge will issue his decision later in writing on the at-will question; while a key point in Lowe’s case, that still leaves the gender-bias and political pressure charges to be decided.


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