Gov. Butch Otter has recently been busy naming high-profile replacement directors for the Idaho Department of Insurance and the Department of Administration.
Longtime State Sen. Dean Cameron was his choice for the Department of Insurance, while former Sen. Bob Geddes has been selected for the Department of Administration.
Cameron is currently the powerful co-chair of the Joint-Finance Appropriations Committee (JFAC) and has been in the State Senate since 1991. He currently represents both Minidoka County and Cassia County.
Geddes was elected to nine terms in the State Senate, representing various counties in Southeast Idaho. He served as president pro tem for 11 years and Otter in 2011 named him chair of the State Tax Commission.
Some have criticized these appointments because both Cameron and Geddes will see substantial boosts in their accrued pensions if they stay in the positions for 42 months. For instance, Cameron would see his monthly pension jump from $750 a month to $4,885 per month while Geddes could see a similar benefit. The Idaho Freedom Foundation has led the charge in highlighting the so-called “PERSI perk”.
However, both are highly capable and will bring substantial expertise to their respective positions. Cameron has built his professional career in the insurance industry and Geddes is great choice to restore credibility to a department rocked by the $60 million illegal state broadband contract under former director Teresa Luna.
But, are there any restrictions to the governor’s power to appoint former or current members of the Legislature to executive branch offices? There are in Idaho.
In 1907 the Idaho Legislature adopted the following statute:
It shall be unlawful for any member of the legislature, during the term for which he was elected, to accept or receive, or for the governor, or other officials or board, to appoint such member of the legislature to, any office of trust, profit, honor or emolument, created by any law passed by the legislature of which he is a member. Any appointment made in violation of this section shall be null and void and without force and effect, and any attempt to exercise the powers of such office by such appointee shall be a usurpation, and the appointee shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined not less than five hundred dollars nor more than five thousand dollars.
Idaho Code § 59-102.
This law seems to bar appointment of legislative members to any position “created by any law passed by the legislature of which he is a member”. A new legislature is installed every two years and so does this restriction only apply to laws passed by the current legislature or does it limit legislators if the law was passed by a previous legislature of which they were a member?
In 1967 the Idaho Supreme Court examined this statute in the context of a challenge to the eligibility of three candidates for office in Bannock County: 1) A probation officer who was running for probate judge, 2) A county clerk who was running for county commissioner and 3) A probate judge who was running for the legislature. Jordan v. Pearce, 91 Idaho 687, 429 P.2d 419 (Idaho, 1967).
In evaluating this challenge the Supreme Court cited Idaho Code § 59-102 and provided the following commentary which provides some guidance: “In 1907 the legislature enacted what is now I.C. § 59-102, which prohibits members of the state legislature from being appointed to an office created when said legislator was holding legislative office, under penalty of being found guilty of a misdemeanor and subject to fine in an amount not less that $500 nor more than $5,000.” 429 P.2d at 422 (emphasis added).
Thus, the Idaho Supreme Court seems to perceive the limitation as a legislator cannot serve in an office created while they were serving in the Legislature, even if such occurred a decade or so ago. In essence, the test appears to be whether or not the office was created during a particular legislator’s current or past service.
An application of this standard to Cameron and Geddes respective appointments is illustrative.
In Cameron’s case, the statute creating the Director of the Department of Insurance was created in 1961, predating his legislative service by 30 years. See Idaho Code § 41-202.Thus, Idaho Code § 59-102 does not restrict his appointment.
Likewise with Geddes, the Department of Administration, and the position of Director, was created in 1974.See Idaho Code § 67-5701. Geddes began service in the State Senate in 1995. His appointment is also not barred.
Presumably Governor Otter’s office conducted the same analysis before either Cameron or Geddes was appointed.