Murky law helps Lowe, experts say

BOISE – Legal experts say ousted Idaho Transportation Director Pam Lowe has grounds to dispute her firing, not necessarily because of her allegations about sex discrimination and political pressure, but because of an unclear Idaho law.

The dispute also threatens to embarrass a governor who’s up for re-election, and it’s already provided an opening for the state’s minority party to declare his administration corrupt.

“This is just the latest example of rampant Republican cronyism, mismanagement and favoritism toward special interests,” said Jim Hansen, executive director of the Idaho Democratic Party. “From secret settlements arranged by the Idaho Tax Commission to corporate tax giveaways made at the expense of middle-class Idaho families, there’s a pattern here, and Idahoans are growing tired of it.”

Gov. Butch Otter has declined to comment on the pending legal issue.

Lowe’s claim against the state – a prelude to a possible lawsuit – says, among other things, that she was improperly dismissed without legal grounds; denied any hearings to challenge her dismissal; discriminated against as the first woman to head the department, which she backed up with startling quotes from an ITD board member questioning the ability of a woman to lead the agency; and subjected to political pressure from the governor’s chief of staff to maintain a contract with politically well-connected firms that she was attempting to scale back.

The legal-grounds issue is key for the head of one of Idaho’s largest state agencies. Idaho law 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 board cited none of those 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.”

Charles Craver, a law professor at George Washington University in Washingtion, D.C., said Idaho’s law contradicts itself by first saying the director serves “at the pleasure of the board,” then listing four grounds for dismissal.

“If you truly serve at the will of the board, at-will means they can terminate you for almost any reason,” Craver said. “The courts would have to decide, do the four causes constitute the only basis for eliminating somebody? Or is that just an example? I think somebody could say those are the only reasons for terminating somebody.”

Arthur Leonard, a law professor at New York Law School, said, “Failing to cite any statutory ground when discharging her sounds to me like a virtual concession that she is entitled to some kind of compensation for her termination.”

That doesn’t necessarily mean her case will end up in court, however. “It would be unusual, I would think, for a government agency in a situation such as this to want to incur the bad publicity incident to a public trial of such claims,” Leonard said, “so negotiating a settlement is a likely outcome.”

Tort claims like the one Lowe filed give the state 90 days to respond, either by settling the claim or denying it and freeing the filer to head to court. Nonresponses are automatically considered denied.

Lowe, an engineer and 15-year employee of the department who served three years as director, is seeking reinstatement to her post, lost wages and benefits, attorney fees, punitive damages, and additional damages for her loss of “reputation and standing in the community.” Lost wages and benefits alone already total $18,267, her claim says.

The sex discrimination portion of Lowe’s claim says when the board was considering her promotion to director, ITD board member Gary Blick said, “ ‘No little girl would be able to run this department,’ or words to that effect,” and asked, “What are we going to do when she decides to start a family?”

“I am amazed that … he would have said that in this day and age,” Craver said. “ … Most employers know that that sort of thing is illegal.”

However, Craver said the strength of Lowe’s discrimination claim would depend on what happened after she became director, and whether discrimination continued.