ID Certificate 2/25/1999 1999-02-25

Could Idaho voters resurrect the state prevailing-wage law (using Davis-Bacon county-seat rates for public works) that the Legislature had repealed in 1985?

Short answer: The proposed initiative would have re-enacted the language of Idaho Code 44-1006, repealed in 1985, requiring public works contracts to specify minimum wage rates and fringe benefits set by the Department of Labor based on Davis-Bacon county-seat rates. The AG saw no legal impediment but flagged that the agency name had changed since 1985 and needed updating.

Disclaimer: This is an official Idaho Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Idaho attorney for advice on your specific situation.

Plain-English summary

Petitioner Daniel R. Obray filed an initiative in February 1999 that would have created a new Idaho Code § 44-1006 setting prevailing-wage requirements for state and local public works contracts. The proposed language was identical to a statute originally enacted in 1955, amended in 1965 and 1974, and repealed in 1985. The mechanism: the Director of the Department of Labor and Industrial Services would set prevailing wage rates based on rates compiled by the federal Davis-Bacon Section of the U.S. Department of Labor, applying those rates as the prevailing wages "in the county seat of the county in which the work is to be performed."

The AG's certificate had little to say. The proposed initiative was simply an attempt to resurrect previously repealed statutory language. The AG identified no constitutional or substantive barrier. The only flag was a small one: since 1985, the Idaho Department of Labor and Industrial Services had been renamed the Idaho Department of Labor (Idaho Code § 67-2402). The petitioner should update the agency name in the proposed text.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Idaho's labor laws have evolved since 1999, and the federal Davis-Bacon framework has been the subject of considerable later regulation and litigation. Idaho currently does not have a state prevailing-wage statute. Anyone advising on current Idaho public works contracting requirements should consult current state and federal labor law.

Common questions

Q: What is a "prevailing wage" law?
A: It is a law requiring contractors on public works projects to pay their workers no less than the local prevailing wage for the relevant trade. The federal Davis-Bacon Act has applied this rule to federally funded projects since 1931. About thirty states have or have had similar state-level rules; Idaho repealed its 1985.

Q: Why did the AG see no problem?
A: Because the proposed language had been law in Idaho before, and the underlying federal Davis-Bacon framework was unaltered. There was no constitutional bar to a state choosing to apply Davis-Bacon county-seat rates to its own public projects. The Legislature had repealed the rule as a policy choice, not because it was unconstitutional, and voters could re-enact it through the initiative process.

Q: Why did the agency name matter?
A: Because the proposed text used the obsolete name "Department of Labor and Industrial Services." Under Idaho Code § 67-2402 the agency had been renamed Department of Labor since 1985. Using the old name in a new statute would create an interpretation issue or require courts and agencies to read the term as referring to the renamed agency. The AG's recommendation was a clean drafting fix.

Q: What was the AG's role?
A: Idaho Code § 34-1809 requires the AG to review every initiative within twenty working days for matters of substantive import. The recommendations are advisory.

Background and statutory framework

Idaho's first prevailing-wage statute was enacted as Idaho Code § 44-1006 in 1955 (1955 Idaho Sess. Laws 77-78), amended in 1965 to add fringe benefits (1965 Idaho Sess. Laws 456), and amended in 1974 to use the title "director of the department of labor and industrial services" (1974 Idaho Sess. Laws 1056). The Legislature repealed the section in 1985 (1985 Idaho Sess. Laws 8).

The federal Davis-Bacon Act provides the rate-setting mechanism the proposed initiative would have used. Davis-Bacon rates are compiled by the U.S. Department of Labor and updated periodically.

Citations and references

Statutes: Idaho Code §§ 34-1809, 44-1006 (repealed 1985), 67-2402; Davis-Bacon Act.

Idaho session laws: 1955 Idaho Sess. Laws 77-78; 1965 Idaho Sess. Laws 456; 1974 Idaho Sess. Laws 1056; 1985 Idaho Sess. Laws 8.

Source

Landing page: https://www.ag.idaho.gov/office-resources/opinions/
Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C022599.pdf

Original opinion text

February 25, 1999
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative Regarding Amendment to Title 44, Chapter 10, Idaho Code

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on February 19, 1999. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office's review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

BALLOT TITLE

Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative would create a new code section, Idaho Code § 44-1006, that states:

44-1006. Determining prevailing wages as paid in county seat of county in which work is being performed. The advertised specifications for every contract let by the State of Idaho and/or any county, city, school district, or other political subdivision of the state for construction, repair and maintenance work on public buildings or public works projects, which involves the employment of mechanics and/or laborers, shall contain a provision stating the minimum wage rates and fringe benefits to be paid various classes of laborers and mechanics in the performance of the contract. It shall be the responsibility of the director of the department of labor and industrial services to determine the prevailing wage rates and fringe benefits in accordance with rates compiled by and on file with the Davis-Bacon Section of the United States Department of Labor by the following procedure:

(a) In all counties in which wage rates and fringe benefits have been compiled by the United States Department of Labor in accordance with the Davis-Bacon Act, such rates and fringe benefits shall be deemed to be the prevailing rates in the county seat of the county in which the work is to be performed.

(b) In all other instances the director of the department shall make a determination after an actual survey of wages and fringe benefits being paid at or near the site of the work. Such determination shall be deemed to be the prevailing rates in the county seat of the county in which the work is to be performed.

The identical language that is proposed by the initiative was enacted by the Idaho legislature in 1955, 1965 and 1974 as Idaho Code § 44-1006. See 1955 Idaho Session Laws 77-78; 1965 Idaho Session Laws 456 (adding "fringe benefits"); 1974 Idaho Session Laws 1056 (changing "state commissioner of labor" to "director of the department of labor and industrial services"). In 1985, the legislature repealed Idaho Code § 44-1006. 1985 Idaho Session Laws 8. Therefore, the proposed initiative is simply an attempt to resurrect previously repealed statutory language.

One statutory change that has occurred since 1985 affects the language in the proposed initiative. Idaho Code § 67-2402 has changed the name of the "Idaho Department of Labor and Industrial Services" to the "Idaho Department of Labor." The petitioners should probably change the designation of the agency in the proposed language to reflect its current name.

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Daniel R. Obray by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General