Friends in high places: About those Garth Brooks constituent letters…

By Melissa Davlin, Idaho Reports

Two months ago, Gov. Brad Little made headlines for appealing to country music star Garth Brooks to add another Boise concert to his tour.

In a May 22 video, Little tells Brooks that a few constituents had asked him to request the additional show after the first concert quickly sold out.

“If it happens, it will be because of this phone calls,” Brooks told Little.

All in good fun, sure. But it got me wondering: Outside of the chaos of the legislative session, what do people contact the governor’s office about? And how many people really contacted Little about another Garth Brooks concert?

Idaho Reports submitted a public records request for all constituent comments submitted to Little’s office during the week-long period between when the first Garth Brooks concert sold out and the release of the video.

In that time period, Little received 114 constituent e-mails and three voicemails. This number does not include social media comments to Little’s accounts. 

Of those, three were about the Garth Brooks concert. Two asked for more shows, and one asked for an investigation of ticket resellers.

The rest dealt with a range of issues. A plurality of messages, 23, were related to the environment, including salmon, flood control, nuclear issues and a proposed smelter in Washington near the Idaho border. 

Sixteen concerned judicial issues, including sentencing reform, probation and parole, the conditions of county jails, and the death penalty. Fourteen people wrote to Little about abortion, with the majority asking for legislation restricting abortion access. 

Only six discussed education-related topics. 

Most of the rest dealt with a grab bag of subjects, including licensing, regulations, invitations to events, texting while walking, and a couple pieces of hate mail. 

 

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Idaho Supreme Court decision on warrantless arrests may affect domestic violence complaints

By Melissa Davlin, Idaho Reports

The Idaho Supreme Court has ruled that officers cannot arrest suspects for misdemeanor offenses without warrants if they have not observed the alleged crime, a decision which justices acknowledged will impact officers’ ability to respond to domestic violence calls.

In the unanimous opinion for State v Clarke, authored by now-retired Justice Joel Horton, the court overturned a conviction for Peter O’Donald Clarke for possession of methamphetamine, marijuana, and paraphanelia, all of which were found during a search of Clarke as he was being arrested for misdemeanor battery.

Clarke had been accused of harassing and groping a woman on a Coeur d’Alene beach, touching her without her consent and following her and her son when they tried to leave. Clarke argued that because the responding officer had not witnessed the alleged harassment, the arrest violated both the Idaho and United States constitutions.

The justices agreed, citing Article 1, Section 17 of the Idaho Constitution, which prohibits warrantless arrests.

That has big implications for officers’ ability to respond to misdemeanor domestic violence situations, said Dr. Lisa Growette Bostaph of Boise State University’s Criminal Justice department.

The justices acknowledged the impact of the opinion, noting that Idaho Code allows officers to intervene in domestic violence situations, even if they have not witnessed the alleged incident.

“We are fully mindful of the significance of this conclusion,’ Horton wrote, noting that “domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community.”

“Nevertheless, the extremely powerful policy considerations which support upholding Idaho Code section 19-603(6) must yield to the requirements of the Idaho Constitution,” the opinion says.

In other words, it doesn’t matter how well-intentioned the statute is if it violates the constitution, and a change to the constitution is likely the only potential remedy.

In the meantime, this ruling will make it significantly harder for officers to respond to alleged domestic violence.

“Unless officers, when they respond, believe a felony has been committed, or unless they witness the actual domestic violence themselves, they will not be able to arrest on-site. They will have to get a warrant and come back,” Bostaph said. “They will not have the legal means when they respond to remove the offending party from their home. They can ask them to leave, but they cannot force them to leave.”

The same will apply to reports of misdemeanor protection order violations and other crimes. If the alleged crime isn’t happening while the officer responds, and the officer doesn’t witness it, they will have to obtain a warrant if they don’t believe a felony has occurred. 

Bostaph said she didn’t want to speculate on how this will affect domestic violence victims and families.

“It’s going to be an unfortunate experiment,” she said. “But to say that I’m nervous, to say that I’m anxious, is not an overstatement.”

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New details in Parker arrest: Coconut oil, conflicting explanations, and a mystery woman

By Devon Downey, Idaho Reports

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When former Idaho Republican Party chairman Jonathan Parker was arrested for first-degree stalking late last month, the responding officers found him in the bushes wearing a long black wig and with coconut oil on his hands, prosecutors alleged during the probable cause hearing.

The individuals who notified police reported that there was a man in a wig seemingly masturbating in their bushes, and that they had seen him peering into their windows while hiding in their dumpster enclosure.

As previously reported, Parker told officers that he was there to “scare” another woman who lived in the complex. Prosecutors said that the responding officers were told that she was an individual whom Parker was dating.

When asked by officers where she was staying and where she was, he could not tell them. Officers were unable to make contact with her, and in the probable cause hearing, it was unclear who the woman was, or if officers knew her identity.

David Leroy, former Idaho Attorney General and attorney for Parker, had claimed during the arraignment hearing that Parker was outside of the protection order area.

However, prosecutors alleged during the probable cause hearing that Parker’s estranged wife lives 100 feet away from where he was found, violating the then 100-yard protection order his wife had. During Parker’s arraignment hearing, Judge Annie McDevitt extended the protection order to 500 feet.

Prosecutors made no reference to a costume party during the hearing, as Leroy claimed during the arraignment.

According to court records, Parker was released on bail. His next hearing will be held on Friday, June 14th.

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Former Idaho Republican chairman charged with stalking

By Seth Ogilvie and Devon Downey, Idaho Reports

Former chairman of the Idaho Republican Party Jonathan Parker was arrested on Thursday for stalking in the first degree.

Screen Shot 2019-05-31 at 9.11.36 AMParker was booked by the Boise City Police Department at 10:44 PM last night, May 30th. According to the charging documents, Parker is accused of repeatedly hiding in bushes, wearing a wig as a disguise, and masturbating near his estranged wife’s apartment in violation of a restraining order.

Parker’s wife filed for divorce shortly after Parker resigned as chairman of the Idaho Republican Party. According to court documents, Parker is not allowed to contact his wife and child under certain circumstances due to a restraining order related to that divorce. 

During the Friday arraignment, former Lieutenant Governor and 2018 congressional candidate David Leroy represented Parker. The state asked for bail to be set at $150,000 and have another no contact order placed.

While the state was describing Parker’s alleged masturbation, Parker shook his head no.

According to the prosecutor, Parker had told officials that he was not there for his ex-wife, but to scare another individual.

Leroy stated that this case is the “product of a grand misunderstanding.” Parker was invited to a costume party in the complex, Leroy claimed, adding that the event was far enough away as to not violate the no-contact order. Because of this, Leroy said he does not expect this matter to proceed much farther as a felony.

When discussing bail, Leroy stated that Parker has a public affairs business to which he needs to attend. According to the Secretary of State’s website, Parker filed April 2019 lobbying reports for his business, Parker Public Affairs, and seven others that had hired him: Cambia Health Solutions, the City of Caldwell, the Idaho Association of Highway Districts, the Idaho Autobody Craftsman Association, Idaho Farmers for Health, Regence BlueShield of Idaho, and the Wine Institute.

Leroy asked for bail to be set at $5,000, stating that Parker has “been a citizen of exemplary comportment and accomplishment”, and that he had previously worked with “one of the major associations that works with the legislature.” In addition to working for Idaho Republican Party, Parker worked at Holland and Hart, though he is no longer employed there.  

Judge Annie McDevitt signed the no-contact order and set bail at $80,000, stating that Parker was a danger to the community, “especially to the alleged victim”. McDevitt also stated that the active protection order already in place has not been proven sufficient, and the new order will be in place until at least 2021 unless otherwise modified or the case is disposed of.

The preliminary hearing for Parker’s case will be held June 14th.

When Parker stepped down in February, he released a statement that cited his family as the reason. “(M)aintaining a full-time job and being a fully engaged Father has been harder than I imagined, so much so that I have reluctantly decided that I should no longer continue to serve as Chairman of the Idaho Republican Party so that I can focus on the priorities I place above all others,” Parker wrote.

The crime is punishable by a fine of up to a thousand dollars and imprisonment of no more than five years.

Idaho Reports reached out to Parker and his wife for comment, but have not received a response at the time of publishing.

Jennifer Locke became acting Chair of the Republican party after Parker’s resignation.

The Idaho GOP will vote on a new chairman at the party’s June summer meeting. High profile names like Raul Labrador and Bryan Smith have been rumored to be in the race, but Idaho Reports has received no comments in response to inquiries about their interest in the position.

 

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Idaho Supreme Court upholds state police whistleblower case, opens door to higher damages

By Melissa Davlin, Idaho Reports

The Idaho Supreme Court on Friday ruled firmly in favor of an Idaho State Police whistleblower, former crash reconstructionist Brandon Eller. In a unanimous decision, the court rebuffed claims that Eller’s case did not qualify under the state Whistleblower Act and reversed a previous decision to cap his damages. Read the ruling here.

Eller sued ISP in 2015 under the Whistleblower Act. He claimed his employer retaliated against him after he testified against a Payette County Sheriff’s deputy who was involved in a fatal crash while responding to a 911 call in 2011. That deputy was later charged for a time with felony vehicular manslaughter. Eller also objected to an ISP policy that directed officers to destroy all but the final drafts of crash reconstruction reports, raising concerns that it violated the law.

In his lawsuit, Eller claimed a commanding officer accused him of lying in the stand. He received a downgrade in his performance review, and ISP later reassigned him. Eller resigned in 2014.

A lower court ruled in Eller’s favor, with a jury awarding him $1.5 million in damages. ISP challenged that award and the district court reduced it to $1 million, citing the Idaho Tort Claims Act, which limits damages.

Both ISP and Eller then appealed the case to the Supreme Court. Along with disagreement over the damage cap, ISP argued Eller’s actions were “routine job performance” that when paired with his “speculative and unproven” concerns, didn’t qualify for whistleblower protection, Friday’s ruling states.

The ruling, written by Justice Richard Bevan, concludes both Eller’s involvement in the crash case and his later concerns clearly qualify him for the protections of the Whistleblower Act.

And in a decision with clear implications for other state whistleblower cases, Bevan said Eller’s damages should be governed by the Whistleblower Act, not the Tort Claims Act. The provisions of the former are more specific to this case, he wrote: “Idaho law provides: ‘Where a statute is clear and unambiguous, the expressed intent of the legislature shall be given effect without engaging in statutory construction.’ In addition, where two statutes conflict, courts should apply the more recent and more specifically applicable statute.

“… Rather than protect individuals as victims of general governmental torts and damages—as under the ITCA — the Whistleblower Act provides an unambiguous ‘legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation,’” the opinion says.

One key difference between the two statutes: The Whistleblower Act doesn’t limit damages, while ITCA limits damages to $500,000 for each claim. Eller had two claims against ISP. The Supreme Court ordered the lower court to revisit Eller’s damages under the Whistleblower Act, without the $500,000-times-two limit.

In other words, this case could get a lot more expensive for ISP.

Nate Poppino contributed to this report.

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IDHW recommends eliminating 12 of 83 rule chapters

By Melissa Davlin, Idaho Reports

The Idaho Department of Health and Welfare has identified 12 administrative rules chapters that it says are no longer needed — and is bracing itself for a potential huge workload in upcoming months.

During the Thursday IDHW board of directors meeting, Tamara Prisock, Division Administrator for Licensing and Certification, said IDHW currently has 83 chapters of rules. After the 2019 Legislature didn’t reauthorize administrative rules at the end of the session, Gov. Brad Little instructed each department to review its existing rules and make recommendations as to which the state should keep. (Read about that fight here.)

Over the last month, IDHW reviewed each of the existing 83 chapters, and found 12 that were either redundant, as they were addressed elsewhere in statute or other rules, or no longer needed, as they were written for programs that no longer exist. Click here for a list of those chapters, as well as the justifications for eliminating them.

The process doesn’t allow for going through the rules with a fine-tooth comb and eliminating individual lines. Instead, departments had to consider entire chapters.

“In the reauthorization, it had to be all or nothing,” Prisock said.

But that isn’t the end of the work, Prisock said. At the beginning of June, each agency will publish two notices: One that lists all fee rule chapters, and one that lists all non-fee rule chapters, that the state wants to reauthorize. Though many of those rule chapters have been in place for decades, they will all be listed as temporary proposed rules.

As temporary proposed rules, each will be subject to a 3-week public comment period. During that comment period, if 25 or more people request a public hearing on an individual chapter, the department is required to have one, Prisock said.

“There could be a significant amount of work that comes out of publishing those two notices in June,” she said.

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The Commission of Pardons and Parole needs clemency

By Seth Ogilvie, Idaho Reports

The Idaho Commission of Pardons and Parole has been consistently breaking the rules for decades. “That’s the way it has been done for as long as the staff can remember,” said Ashley Dowell, the commission’s executive director.

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Executive Director Ashley Dowell

The rules in question are not complicated. “The decision and supporting documents regarding a commutation will be filed with the Secretary of State,” reads the Idaho statute on clemency hearings. It’s equally straightforward on pardons. “The decision and supporting documents regarding the decision to grant or deny a pardon will be filed with the Secretary of State.”

The Secretary of State’s office is the body tasked with making the decisions and documents available to the public. “As a public agency, transparency is paramount,” said Parole Commissioner Lisa Growette Bostaph in an email to Idaho Reports. “Those processes provide necessary transparency about our decision-making as commissioners.”

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Commissioner Lisa Growette Bostaph

The commission has only been turning over documents related to pardons and commutations they approved, and not always promptly. In response to an inquiry last week, Dowell told Idaho Reports, “We determined that there had been a historical agreement between the Commission of Pardons and Parole staff and the Secretary of State’s staff.”

The agreement was to not turnover documentation for pardons and commutation hearings when they decided to deny a pardon or clemency.

Lisa Mason, the person currently responsible for these documents in the office of the Secretary of State, was unaware of this agreement when talking to Idaho Reports earlier this month.

Former Secretary of State Ben Ysursa told Idaho Reports “I can’t remember any such agreement.”

“We never entered into an agreement,” said Miren Artiach, the former deputy secretary of state responsible for these documents. “We never would have entered into an agreement contrary to the rules.”

Dowell says the commission has maintained records that have not been turned over to the Secretary of State at the commission office. “Generally, those records are retained for ten years, but it varies,” said Dowell.

The commission’s problem with handing over materials, however, dates back far longer.

“I worked with them for 40 years,” said Artiach. “There was always a problem with getting those documents.”

That means 30 years of Idaho pardon and commutation decisions and records may be gone.

Dowell is new to her director position. “Executive Director Sandy Jones began the process of making the commission actually transparent: bringing the backlog of minutes up to date, instituting audio recording of all hearings, shepherding in the use of decision guidelines by commissioners, explicitly and consistently stating reasons for grants and/or denials in decisions, and expanding contact with victims,” said Bostaph. “Executive Director Dowell has begun to further those initiatives in her short time, thus far, by ensuring compliance with the open meeting law.”

Many of these practices in question came from Olivia Craven, a previous director. Both Ysursa and Artiach expressed frustration with their interactions with Craven regarding pardons and commutations.

“Even when we did receive the correct documents there was usually a significant lag time,” said Artiach. “On one occasion the commission was several years behind schedule before eventually dumping three years of documents in our office.”

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Former Secretary of State Ben Ysursa

The Secretary of State contacted the governor about the difficulty they were having acquiring these records. “We had a come to Jesus moment with Olivia Craven about record keeping,” said Ysursa. “We thought it was unconscionable not to have the gold certificate for someone who went through this process.”

On at least one occasion, the Secretary of State received documents only signed by Director Carven rather than the commissioners, according to Artiach.

The Secretary of State has no authority to compel the commission staff to turn over the documents; neither do the actual Pardon and Parole commissioners. The governor appoints the Director. Commissioners and the Secretary of State have no input on the Director position or their staff unless the governor inquires.

When people were unable to find documents or discovered the problem existed, “they often used our office as an excuse when we had never received the documents, to begin with,” said Artiach.

Dowell is not passing the blame to the Secretary of State. “Upon reviewing that practice, the commission will be working with the Secretary of State to provide all documents related to pardons, commutations, and restoration of firearms to the Secretary of State,” said Dowell.

“We do not oversee processing and business operations or the Executive Director,” said Bostaph. “If the commission office is not in compliance with an administrative rule, they need to change that.”

“We will be in compliance moving forward,” said Dowell. “I can’t comment on whether we were in compliance before.”

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