STATE BOARD OF EXAMINERS
October 9, 2001 – 8:55 a.m.
JRW Building East Conference Room
Governor Dirk Kempthorne, Chairman of the Board
Secretary of State Pete Cenarrusa
Attorney General Al Lance (by phone)
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
Steve Kenyon, Office of State Controller
Lou Piccioni, Filicetti Law Office
Joseph Filicetti, Filicetti Law Office
1. Approval of Minutes for September 11, 2001 State Board of Examiners Meeting.
2. IDAHO STATE POLICE
Recommend settlement of wage claim for John Olmsted.
3. UNIVERSITY OF IDAHO
Request for authorization to reimburse additional moving expenses up to $8,000 for an assistant professor in the Department of Plant, Soil, and Entomological Science in the College of Agriculture. Sub-Committee approval up to $5,000 was given March 15, 2001for the position. There are two finalists for this position and they would be relocating from New Jersey or Saskatooon, Canada to Moscow, Idaho. Payment of moving expenses will be from non-appropriated state funds.
BOISE STATE UNIVERSITY
4. Request for authorization for additional moving expenses of $1,233.11 for Mr. John Ringle, Director of Student Housing, to be paid out of local funds. Initial expenses of $5,000 were approved May, 2001.
5. Request for authorization for additional moving expenses of $690.00 for Mr. Robert Gregory, Assistant Football Coach, to be paid out of local funds. Initial expenses of $5,000 were approved December, 2000.
6. IDAHO STATE POLICE
11. VOCATIONAL REHABILITATION
Request for authorization to pay accrued compensatory time for the following employees, accrued as a result of the extraordinary demands created by the preparation for and service during the Western Governor’s Association meeting in Coeur d’Alene.
Vacation Balance Comp Balance
Captain Danny Bunderson 273.2 61.5
Lieutenant Bob Lee 334.9 56.0
Captain Wayne Longo 282.1 51.1
Captain Dave Kane 280.2 60.9
Captain Clark Rollins 306.5 43.5
Captain Ed Gygli 139.4 52.5
Captain Craig Peterson 226.2 30.0
Captain Ed Rankin 319.4 50.0
Lieutenant Steve Richardson 325.5 58.0
Lieutenant Duane Sammons 336.0 50.0
Major Kevin Johnson 320.6 68.0
BUREAU OF HAZARDOUS MATERIALS
Request for authorization to issue deficiency warrants for reimbursement of response costs incurred, pursuant to Idaho Code 39-7110.
12. OFFICE OF ATTORNEY GENERAL
Request for recognition of assignment as executed by Assignor Thomas L. Edmark, President, Edmark Motors, Inc., and The Thomas & Helen Edmark Trust, both of Caldwell, Idaho for a real property lease regarding the State of Idaho, by and through the Department of Vocational Rehabilitation as Lessee and Lessee’s occupancy off Suite AT, Bldg A, 3110 E. Cleveland Blvd., Caldwell, Idaho, pursuant to Idaho Code 67-1027.
Notification that Cynthia J. Larsen and Margaret H. Gillespie of the firm of Orrick, Herrington & Sutcliffe as special deputy attorneys general for he purpose of representing the State of Idaho and Michael McLaughlin, Judge of the Fourth District Court of the State of Idaho in the Boyd v. McLaughlin, et al, Case No. CV 012-6490 CAS AIJx, pursuant to Idaho Code §67-1409.
Governor: I call the meeting of the Board of Examiners to order and will turn it over to the Secretary.
State Controller: Mr. Chairman, we have 19 items on the Consent Agenda which the Sub-Committee recommends for approval by the Board.
Governor: Are there any questions or comments? General?
Attorney General: Governor, I need to inquire of J. D. if the claim of the individual who used to be a deputy and work for the Department of Law Enforcement is on that Consent Agenda.
State Controller: Yes, Al, it is on the Consent Agenda.
Attorney General: I would ask, Governor, that maybe that be set aside for discussion after the dispose of the other items.
Governor: If there is no disagreement, that is fine. I would entertain a motion for adoption of the Consent Agenda.
Secretary of State: Governor, I move the adoption of the Consent Agenda.
Governor: Moved and seconded with the exception of Item #2. General, do we have a second from you?
Attorney General: Yes, I will second that.
Governor: Moved and seconded. Any discussion? Those in favor please say aye.
Secretary of State
Opposed, nay. The ayes have it unanimous.
Governor: We have before us Item #2. General, do you wish to make comment on that or do you wish J. D. to give some background.
Attorney General: Your preference, Governor. I have been briefed on it and I am familiar with the situation. The concern that I have, of course, deals with the precedent where the money comes from and the age of the claim. If Dave High is in the room there, I think Dave has some of the background information that he and I have discussed. If you don’t mind, I would ask Dave to make his presentation to you at this time.
Governor: Okay. Very well, Dave.
David High: Governor, thank you. Board members. I think the Sub-Committee felt that this claim should be paid as compromised. It is an unusual situation that we felt was not a strong legal argument that it be paid but it was a belief that, in fact, work had been done by Mr. Olmsted that was never reimbursed, and that we felt it would not be right to simply do work and the failure or inability to report the claim earlier, however it did seem that we should make a settlement of the claim to recognize the contribution that he has made to the state. With that said, the next issue is where the money should come from. There were actually two other individuals who were in a similar situation early on that were terminated in the 1970’s, and upon their termination they did bring a claim to the Board of Examiners and that claim was paid by the Department of Law Enforcement. So that is the precedent as to would pay. There has been some discussion that it be treated as a tort claim. I do not know if that would work out but it is something that I gather is being looked into. There has been a suggestion that our office should pay. I think that would be incorrect. There is, from my point of view, no legal basis upon which it could be the Attorney General’s Office. The only basis upon which you could have a valid claim today is if liability transferred to the Department of Law Enforcement and remained there until retirement. That is the only legal argument which could possibly be argued. And if that were true, it would be absolutely certain that Law Enforcement would pay it. I think that for the Attorney General’s Office to pay it would be an incorrect legal answer and incorrect precedent.
Governor: Dave, let me ask you if I may then. The issue is not this payment by the state to Mr. Olmsted. It is a question of which account it is drawn from?
David High: That is correct. Governor, there is one other possibility. If it is determined there is no account that is chargeable with an appropriation to pay the claim but the Board finds it is a valid claim, then the constitution calls for the Board to recommend the legislature appropriate an amount to pay the claim. So that would be, I guess, a third possibility here. So, as I see it, the claim ought to be paid, if possible, by Law Enforcement. If they don’t view it as a claim against them, then you could explore the Risk Management option. And third, if that is not the case, I think it should be referred to the legislature for an appropriation. That is the procedure the constitution would call for if there is not an appropriation chargeable with the payment.
Governor: Dave, thank you very much. Further discussion?
Attorney General: Governor, that is the dilemma we are faced with. Whether we believe it is a meritorious claim in equity or not, the question is where the money comes from. If the other members of the Board are of the opinion that it is a claim that should be payable, then possibly we ought refer it to the legislature to see if they would like to appropriate the money. That is kind of where I am, Governor. Because our office is involved in this I guess I am interested to hear what the other two members are thinking.
Governor: Let me open it up to the other two members. Before I do that, let me ask Brian Whitlock, Division of Financial Management. Brian, it seems that there is absolute agreement that we have a claim that needs to be paid. It is just a question of which account it is charged to. Do you have a path forward so we can pay the individual and then that would allow us time to then continue to determine if it is ISP or Risk Management, or in fact, we should seek legislative action.
Brian Whitlock: That is correct, Governor, members of the Board. I have had discussions with Colonel Ed Strickfaden, Director of the Idaho State Police, and informed him of the recommendation from the Sub-Committee of the Board and that potentially the Idaho State Police could have a $12,000 payment that they would have to make to Mr. Olmsted. Colonel Strickfaden is agreeable to that and understands that. I did inform him as well that this was a wage claim, not a tort claim. We still might be able to contact Risk Management for some relief as well. The accounts are set up there and we have opportunity through Risk Management to address these kinds of issues that come before the state, so we are pursuing that as well. The bottom line is if the Board takes action today and approves payment, the payment will be made. It will either come from Idaho State Police or, if possible the preferred alternative, then would be to go to Risk Management, if we are allowed to do that. I don’t have a good answer for you whether we are allowed to do that this point but there are certain things that will still need to be worked out once payment is approved by the Board. Withholdings and those kind of things have to be discussed with Mr. Olmsted and his attorney, and withholdings have to take place. So we are still a couple weeks away before a check would be cut and we have time, I think, to determine which entity in the state would pay for that.
Governor: Your recommendation is for the Board of Examiners to take action today. As a final resort Idaho State Police is prepared to pay this, but you will continue to explore other options.
Brian Whitlock: That is correct, sir.
Governor: Okay. Further discussion? Thank you, Brian. Mr. Secretary.
Secretary of State: Governor, I approve that this item be paid giving the Board of Examiners the okay to have the bill paid and then for whatever department it is, Risk Management or whatever it may be, work it out.
Governor: Okay. Is there is second?
Attorney General: Yes, Governor. Based upon the explanation that Brian has given us I would second the motion.
Governor: Further discussion? Hearing none, would those in favor please say aye.
Secretary of State
Opposed, nay. The ayes have it. It is unanimous. Is there anything else to come before us, Mr. Controller?
State Controller: Governor, we have the Informational Agenda, three items that detail the balances in the State Insurance Fund and the Petroleum Storage Tank Fund. That would conclude the agenda.
Governor: Mr. Secretary or General, any other comments or items? If not, I will adjourn the State Board of Examiners and thank all for their participation.
13. Estimate of the State Insurance Fund expenses to be paid by sight drafts for the month of September 2001.
14. Estimate of the Petroleum Storage Tank Fund expenses to be paid by sight draft or the month of September 2001.
Estimated expenditure for workers $10,000,000.00
compensation claim costs, dividends
and premium refunds
Funds Expended in August 2001:
Workers Compensation Claim Costs $ 7,279,641.93
Policy Refunds 160,305.05
Estimated expenditures for $750,000.00
Petroleum Storage Tank Fund
Fund expended in August 2001:
Payroll $ 77,819.37
Claim Costs 120,470.83
Total $ 223,761.03
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