Federal Magistrate Judge Ron Bush raised questions at a court hearing today about whether fired ITD Director Pam 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 question of if Lowe was an at-will employee or not should be referred back to the Idaho Supreme Court - a move that could delay the case for years.

The judge's questions came up during a federal court hearing today on Lowe's motion to decide a key point in her case now - whether the state's transportation director is an at-will employee who can be fired for any reason 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." None of those grounds was cited when the Idaho Transportation Board fired Lowe last year; she's charged that she was ousted for trying 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 of her gender, as the department's first female director. Lowe has since been replaced by a man who's being paid $22,000 a year more than she made.

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 provide some guidance, they provide some examples, they counsel the board that the director is performance-based, but they're not a limit on the board's authority," he told the court. The Legislature's Statement of Purpose for the 1974 law, he said, is "irrelevant" because "it's not in the statute." The Statement of Purpose, which Lowe's attorney, Erika Birch, submitted to the court to bolster her argument, says the director "shall serve at the pleasure of the board and may be removed by the board only for stated cause."

Lowe said after the hearing, "I thought Erika's argument was really compelling. Clearly, the judge wanted to hear and gather a lot of information, which I thought was positive."

Birch argued that grounds for dismissing the transportation director - which aren't found in the laws about any other state department heads - were designed specifically to "provide at least one level of political insulation between the governor and the director." The judge said if the director doesn't violate the four grounds, "Is that person entitled to serve for life in that position then?"  "I think they are," Birch responded. "I think the Legislature was singling out this position to give them a potential lifetime or until-retirement security in their position ... unless those specific grounds are found." She added that directors in the past have been removed only for cause. "We know that directors have traditionally held long tenures with the department."
 
Neither side contended that Lowe was a classified employee subject to the state's civil-service rules, but Judge Bush said he wasn't convinced she wasn't. "You may be comfortable" that she wasn't, Bush told lawyers on both sides, "but I don't know that I'm comfortable. ... Then we have a whole different ballgame." He also noted the possibility of referring the at-will question to the Idaho Supreme Court, 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." He took the motion under advisement and will issue his ruling in writing.