The Idaho Attorney General’s office is weighing in on the latest tug of war for power between the governor and lieutenant governor.
Earlier this week, Lt. Gov. Janice McGeachin issued an executive order while Gov. Brad Little was in Texas. It banned COVID-19 vaccine and testing mandates for state agencies and public K-12 schools.
Little signed an executive order this spring barring state agencies from requiring employees to prove they’ve been vaccinated, though it didn’t include K-12 schools.
Little repealed McGeachin’s order while still in Texas, even though the Idaho Constitution says all executive powers go to the lieutenant governor when the governor is absent from the state.
In a 16-page opinion, Chief Deputy Attorney General Brian Kane wrote it’s “reasonable” for Little’s office to interpret that to mean he’s effectively absent and can’t perform the duties of his office.
Kane said it would “absurd” for the lieutenant governor to assume all gubernatorial powers while the governor is just physically absent from the state.
“Given the technologies available in this day and age, there is no impediment to the governor performing his duties remotely,” he said.
Citizens of the state wouldn’t necessarily know which executive orders or directives to follow if they’re conflicting, Kane said.
Such a strict interpretation of a governor’s physical absence could lead to confusion for those who work in that office.
“Staffers would have to constantly monitor the governor's location to know whether they should follow instructions given to them by the lieutenant governor or the governor,” Kane said.
But, he noted that it’s a close question. States that have similar provisions are split almost down the middle on how to interpret what absence means, according to Kane.
Little’s office declined to comment on the opinion and McGeachin’s chief of staff didn’t immediately respond to requests.
Should this question end up in the court system, it’s unclear how it might play out logistically.
The Idaho Attorney General’s office is required to represent state agencies and constitutional officers in lawsuits. Representing one or both offices could present conflicts of interest.
A spokesperson for the attorney general’s office declined to comment.
The most recent example of an intrastate legal battle came in 2019 when legislative leaders sued Treasurer Julie Ellsworth after she refused to vacate her office at the Idaho Capitol.
Both parties used outside legal counsel in the case. The Idaho Supreme Court eventually sided with the legislature in a unanimous decision this January.
The feud cost taxpayers hundreds of thousands of dollars.
McGeachin’s office, which has the smallest budget in the state of $173,000 in the current fiscal year, is already asking Idaho lawmakers for $50,000 to cover “unanticipated legal costs.”
That money would pay for her private attorney’s defense in a lawsuit by the Idaho Press Club over her refusal to release unredacted public records related to her education indoctrination task force.
McGeachin said she “was forced to find outside counsel following the abrupt termination of counsel and guidance from the Attorney General's Office after almost two months.”
That request will go before the Joint Finance and Appropriations Committee. If it’s approved there, it would then need approval from a majority of the House and Senate.
If lawmakers deny McGeachin’s request, she said would otherwise have to reduce staff hours and constituent services to pay the bill.
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