STATE BOARD OF EXAMINERS
May 29, 2001 – 1:00 p.m.
JRW East Conference Room
Governor Dirk Kempthorne, Chairman of the Board
Secretary of State Pete Cenarrusa
Attorney General Al Lance
State Controller and Secretary of the Board J. D. Williams
Sub-Committee Members Attending:
Brian Whitlock, Office of Governor
Ben Ysursa, Office of Secretary of State
David High, Office of Attorney General
Keith Johnson, Office of State Controller
Glenn Ford, Idaho State Police
Tim O’Leary, Idaho State Police
David Tolman, Division of Financial Management
Steve Kenyon, Office of State Controller
1. Request for authorization to reimburse moving expenses from state funds for up to $6,000 for Dr. Juan Alvarez, assistant professor for the Department of Plant, Soil, and Entomological Sciences, effective June 1, 2001, from Gainesville, Florida to Aberdeen, Idaho.
2. Request for authorization to reimburse moving expenses from state funds for up to $10,000 for Dr. Monte Boisen, Chair for the Department of Mathematics, effective July 22, 2001, from Blacksburg, Virginia to Moscow, Idaho.
3. DEPARTMENT OF FISH AND GAME
SUB-COMMITTEE MEMBERS RECOMMEND PAYMENT OF 240.0 HOURS TO MR. STEVE BARTON AND ENCOURAGE HIM TO TAKE THE REMAINDER HOURS OFF.
Request for authorization to (1) lift vacation caps until July 1, 2002 and (2) pay compensatory time earned through May 26, 2001 for Stephen M. Barton. Mr. Barton’s request was pulled from the May 8, 2001 Board of Examiners meeting until the question of how Idaho Code §67-5329 applies to compensatory time payoff for employees who are in an executive/administrative classification could be researched.
Annual Leave Comp Time
Stephen M. Barton 336.0 471.6
4. LEGISLATIVE SERVICES
Request for authorization to pay 252.0 hours compensatory time to Ross Borden. Mr. Bordon is one of two key LSO staffers assigned by the Legislative Council to plan, design and implement the operation necessary to carry out the work of the Constitutionally mandated Reapportionment Commission. It will be impossible for him to utilize the hours in time off.
5. MILITARY DIVISION
Request for authorization to pay 52.0 hours compensatory time to Mr. Jonathan Perry, Mitigation Specialist, Bureau of Disaster Services for overtime hours accumulated while assisting the State of Washington March 121-24, 2001 during the recovery phase of the Nisqually Earthquake, DR-WA-1361.
6. IDAHO STATE POLICE
Request for authorization to pay accrued compensatory time for the following employees:
Trish Christy, Management Assistant 36.5 hours
Ms. Christy accrued the overtime because of some unusual projects at POST. She is near her vacation maximum and is barely able to take enough leave to avoid losing vacation time.
Danny Ferguson, Supply Operations Supervisor 64.0 hours
Mr. Ferguson has been involved in implementing changes in facilities management, warehousing, and material practices.
7. IDAHO PUBLIC TELEVISION
Request for authorization to pay Sandy Sutherland, Underwriting Account Executive, a bonus of $500.00, paid from private funds, during FY01. This is in addition to the $1,000 that she has already received this year.
BUREAU OF HAZARDOUS MATERIALS
Rupert Fire, MVERT
OFFICE OF ATTORNEY GENERAL
19. Notification that Mary York of the firm of Holland & Hart has been appointed as a special deputy attorney general for the purpose of representing the State of Idaho in the Am. Trucking Assoc., Inc. v. State of Idaho, et al., Case No. CV-OC-9700724-D, pursuant to Idaho Code §67-1409.
20. Notification that Merlyn W. Clark of the firm of Hawley, Troxell, Ennis & Hawley, has been appointed as a special deputy attorney general for the purpose of representing former Governor Philip E. Batt in all matters related to the Hayden Lake Fire Protection Dist., et al. v. Alcorn, et al., Case No. C V-00-00525, pursuant to Idaho Code §67-1409.
21. Notification that Anthony M. Baldez of the firm of Benoit, Alexander, Sinclair, Harwood & High has been appointed as a special deputy attorney general for the purpose of representing the State of Idaho in the Brown, et al. v. Walton, et al., Case No. CV-01-1388; State File No. 2001-0250-001, pursuant to Idaho Code §67-1409.
Governor: I will call on the State Controller as Secretary of the Board of Examiners for his report.
State Controller: Thank you, Mr. Chairman and Governor. We have a number of items on the Consent Agenda, and one item on the Regular Agenda we probably should discuss. On the 21 items on the Consent Agenda, the Sub-Committee has met and the recommendation is that they be adopted by the Board
Governor: I will open this for discussion.
Secretary of State: I will move the Consent Agenda be adopted.
Attorney General: Seconded.
Governor: Is there any discussion? If there is no discussion, those in favor please say aye.
Secretary of State
Opposed, nay. The ayes have it. So carried.
22 DIVISION OF FINANCIAL MANAGEMENT
SUB-COMMITTEE MEMBERS RECOMMEND APPROVAL WITH THE CONDITION THAT THE DIRECTOR’S APPROVAL IS CONSISTENT WITH THE U.S. DEPARTMENT OF JUSTICE STANDARDS.
Request for approval of payment to the families of Corporal James Moulson and Corporal Phillip Anderson, pursuant to Idaho Code §67-2028 establishing Peace Officer Death Benefits to the families for any peace officer killed in the performance of the officer’s duty. It is anticipated that the total of the payments would be $140,000, but would not exceed $200,000. This is contingent upon the certification of the Director of the Department of State Police that the deaths occurred in the performance of duty, and upon the final approval of the Memorandum of Understanding setting up the operational aspects of I.C. 67-2028.
Governor: We have before us on the Regular Agenda Item #22.
State Controller: Governor, this item on the Regular Agenda is a request from the Idaho State Police for approval of payments to the families of the two corporals in Jerome County that were killed earlier this year in the performance of their duties. This is pursuant to a statute passed last session and signed by the Governor that allows the payment of between $140,000 and upward to $200,000 to the families of the two individuals. This is contingent upon certain certification from the Idaho State Police. Also as we have put this together, we noticed the statute provides that the state income tax is waived on this for state purposes, but there is a question on the federal side and the compliance with a certain employment benefit statutes similar to 401K. For this particular one it is the 401K. and adoption of certain qualified plans by the State of Idaho, which most likely would have to be done first. There are a couple conditions in that, but with that understanding we have been told that the department does need preliminary approval from the Board of Examiners before they can proceed.
Governor: I know that Glenn Ford is here from the Idaho State Police. Glenn, any comments you would like to make.
Glenn Ford: Yes, Governor. I have brought Tim O’Leary with me, who is in charge of our Human Resources at the State Police. It is somewhat confusing on the tax issue but I will yield to him.
Governor: Tim, if you would, please.
Tim O’Leary: Governor, we have made a number of inquiries because there are other states that have similar benefits constructed almost identically to what we have here. I talked with Indiana, whose statute reads almost verbatim as does ours, and their counterpart to the Controller’s Office, which is called the Auditor’s Office in Indiana, do not withhold taxes. The Internal Revenue Service put out a letter ruling when the Department of Justice program was initiated in 1977 and they make reference to the fact that this is a definite, and as such, is an employment benefit similar to worker’s compensation. On that basis it was the IRS’s position that released the federal at that time. The federal benefit was not taxable by the IRS. Subsequently we have asked the local office of the Internal Revenue Service to give us a letter to that effect and they have indicated we should have that in a week or ten days.
Governor: That would be very beneficial to the families.
Attorney General: When I conclude I am going to ask for unanimous consent to hold this for a little bit. We have lawsuits coming at the present time for the same family members who would be the recipients of these monies, and the interrelationship between a lawsuit against - in this case it is Jerome County of the State of Idaho - with this money. It troubles me a little bit because if we are the State of Idaho and we had lawsuits pending, how does the statute and how does this relate to any recovery of any judgment of the State of Idaho, which is not the case in this instance. Whether it would offset against any judgment that might be given to the family members or the issue of negligence that is the cause of action the family members are pursuing in Jerome County. I apologize for not bringing this to your attention earlier, but it seems to me we need to think about this a little bit and study it in terms of wrongful death actions brought against a governmental entity alleging negligence. It seems to me somehow we need to anticipate either do you get the lawsuit and this benefit, or do you get the benefit without the lawsuit, or that you offset this amount of money from any judgment you recover. I think we need to think about these things a little bit so I would ask and request a unanimous consent to remove it from the agenda for this meeting.
Governor: Glenn, can you answer for me, is there any type sensitivity to this issue?
Glenn Ford: I am not familiar with that lawsuit – I know there are lawsuits filed but I don’t know the details. I suspect, and I can’t speak for the families, but I suspect they would like to have this benefit as soon as possible. As far as the State of Idaho or the Idaho State Police involved in this, we are finished.
Governor: We have heard the unanimous consent request. Is there an objection? There is no objection so we will defer this. I will also note though that for James Moulson and Phillip Anderson – like many of you, I attended the services for these two individuals. Two young men that every day when they put on their uniforms and their badges they represented the people of Idaho and the values of Idaho. I am very pleased that this provision is now part of Idaho law in that the law enforcement officer who dies during the performance of his or her duty will receive this benefit. It is $100,000 to the spouse of the deceased officer, and $40,000 if it is the parents. So that is why we talked about the $140,000. I did sign this particular legislation into law in my office at a private ceremony with the family members, so again, there is a great deal of sensitivity to this and certainly our appreciation to all men and women in law enforcement in Idaho who protect our form of life, the safety of our neighborhoods, welfare of our children, and the values we hold dear. So we appreciate them.
Attorney General: Governor, just so there is no misunderstanding. I am not opposed to the payments at all, or the statute. I just think there is some issues here that I hadn’t given thought to. Possibly, J.D., this would allow us sufficient time to seek an opinion from the IRS concerning this particular statute as well.
State Controller: Governor, Al, I don’t think it’s a real major problem. It is something we can work out. Connie Nass is the State Auditor in Indiana and we can check with them very quickly and see how they did it, and see if they had this 401K plan in place. It is a cafeteria plan and we probably ought to do it anyway because we are pretty much acting like a cafeteria plan now in the state. It is probably something we will want to look at.
Governor: It would be very beneficial to have the IRS letter as the precedent, and I hope and pray we never have to use this benefit again. But if we do, this is just one more element that is of real benefit to the family. If there is nothing else to come before us.
State Controller: Governor, we have the informational item from the State Insurance Fund on the various statutory amounts that we file every month. With that, that will conclude the agenda of the Board of Examiners.
Governor: Anything else to come before us. If not, the Board of Examiners stands adjourned.
23. Estimate of the State Insurance Fund expenses to be paid by sight drafts for the month of May 2001.
24. Estimate of the Petroleum Storage Tank Fund expenses to be paid by sight draft or the month of May 2001.
Estimated expenditure for workers $10,000,000.00
compensation claim costs, dividends
and premium refunds
Funds Expended in April 2001:
Workers Compensation Claim Costs $ 5,792,459.78
Policy Refunds 145,540.06
Estimated expenditures for $750,000.00
Petroleum Storage Tank Fund
Fund expended in April 2001:
Payroll $ 47,466.37
Claim Costs 109,050.92
Total $ 166,828.71
WHEREUPON THE MEETING OF THE STATE BOARD OF EXAMINERS was adjourned, subject to the call of the Chairman.
Governor Dirk Kempthorne
Chairman of the Board
J. D. Williams, Secretary to the Board
and State Controller