In its 2014 session, the Idaho Legislature took the smallest baby steps it could when it passed S 1369.  The bill was signed into law by the Governor on March 26, 2014, and went into effect on July 1, 2014.  It was not passed to encourage the systematic investigation and prosecution of corrupt public officials in Idaho.  It was passed to make Idaho’s county prosecuting attorneys more comfortable and politically safe.

This is made clear in the bill’s statement of purpose which reads, “This bill eliminates a conflict of interest that currently exists for county prosecutors.  County prosecutors represent county elected officials in their elected capacity, and also have a responsibility to deal with misconduct by those same county elected officials when they are acting in their official capacity.  This bill moves the misconduct authority to the Attorney General.”

The Idaho Attorney General’s homepage has a left-column button labeled “Public Corruption.”  Mouseclicking on that button will offer the reader links to two other webpages.  One of them is entitled, “Explanation of Duties and Responsibilities,” and the other is entitled, “Public Corruption Complaint Form.”

Reading the “Explanation of Duties and Responsibilities” page confirms that this new section of law “…authorizes the Attorney General to conduct ‘a preliminary investigation of any allegation of a violation of state law, criminal or civil, against a county officer occupying an elective office for violation of state law in his official capacity.’ ”

To make this crystal clear, the new law authorizes the Attorney General to conduct a preliminary investigation of allegations of misconduct only against  (1) County Commissioners; (2) County Prosecuting Attorney; (3) County Sheriff; (4) County Clerk; (5) County Assessor; (6) County Treasurer, and (7) County Coroner.

So in Kootenai County, for example, the new section of law authorizes the AG to investigate nine people, no more.   No one else unless the county prosecuting attorney invites the AG to come in. 

The new section of law would not have authorized the AG to conduct the embezzlement investigation and prosecution of Kootenai County’s former Deputy Kootenai County Clerk Sandra Kay Martinson, because although she was former County Clerk Dan English’s Chief Deputy Clerk, she was not one of the elected officials enumerated by Idaho law.

Which to us raises an obvious problematic issue:  What happens if the allegation of misconduct implicates both an enumerated elected official and one or more of his subordinates?

For example, what action will the AG’s office take if a citizen raises a credible allegation that a sheriff and one or more members of his/her command staff have been engaging in the unlawful manipulation of inmate financial accounts?  Will the AG agree to investigate the sheriff but leave the investigation of the subordinates to the county prosecuting attorney?

Or suppose that a county clerk unlawfully allows a deputy clerk to “wipe clean” his/her computer containing evidence which the county clerk knows or should know is material to ongoing, pending, or reasonably foreseeable litigation?  Will the AG agree to investigate the county clerk but leave the investigation of the chief deputy clerk to the county prosecuting attorney?

It seems to us that the solution to both of these hypothetical issues is that when the allegation involves official misconduct by anyone in the office of one of the enumerated officials, the AG must have the authority to assume responsibility over the entire investigation even if the enumerated official has not been named in the initial complaint.   The reason for this is obvious:  Until the investigation has been completed, there is no way to know who will be implicated.  Thus, an investigation initiated on a subordinate may in fact ultimately implicate the supervising enumerated official.

We think it also raises a related issue:  Because the new section is limited to only those enumerated elected officials, isn’t the Legislature recognizing that the county prosecuting attorney did not and does not have any inherent conflict of interest investigating any other elected or appointed official in his or her county?

We think a solution to both issues is for the Idaho Legislature to expressly give complete and unrestricted concurrent authority to the Idaho Attorney General for all criminal investigations.

In addition to addressing the issues unresolved by the new section of law, concurrent authority would create competition to generate and win good cases.  That  would improve the quality of personnel in both the AG’s and the county prosecutors’ offices.   Competition for career-enhancing cases would encourage better candidates for both the AG position and county prosecuting attorney positions, and it would likewise force them to hire equally aggressive, skilled subordinates.

Improving the quality of prosecutors in both the AG’s office and county prosecutors’ offices would nudge Idaho’s law enforcement agencies to improve the quality of their investigations.  Demanding prosecutors will decline poorly investigated cases and publicize the reasons for their declination.

Finally, concurrent authority would eventually weed out district court judges and magistrates who were selected for political reliability rather than professional skills.  Good cases investigated by competent investigators and prepared by competent prosecutors demand good judges who have the professional knowledge, skills, and abilities and the desire to further the cause of justice.  Just as concurrent authority would improve the prosecutors and law enforcement agencies, so it would eventually cause political hacks  to be replaced by competent jurists.

We are realistic.  We don’t expect the current Idaho Legislature to consider giving the AG the necessary concurrent authority.  Many of Idaho’s citizen legislators are terrified by the thought of diligent, competent law enforcement delivering thoroughly investigated, complete cases to a prosecutor who isn’t a wholly-owned subsidiary of the local social/political/economic power structure in the legislator’s own district.