New questions in ITD firing case

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 two and a half years. She’s since been replaced by a man who’s being paid $22,000 a year more than she made. 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 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 Birch had 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.” 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” so transportation decisions can made without worrying about “stepping on toes” politically. 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 the judge said that was an open question. “Then we have a whole different ballgame,” he said. He’ll 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.