What wage rule would Idaho’s 1999 public works initiative have restored, and what change did the AG recommend?

Plain-English summary

Daniel R. Obray’s February 1999 initiative proposed adding Idaho Code § 44-1006. For construction, repair, or maintenance contracts on public buildings or public works projects employing laborers or mechanics, the proposal would have required advertised specifications to state minimum wage rates and fringe benefits for each class of worker. The director of the labor department would determine those rates.

Where the U.S. Department of Labor had compiled rates under the Davis-Bacon Act for a county, the proposal would have used those rates and benefits as the prevailing rates at that county’s seat. Elsewhere, the director would have surveyed wages and benefits paid at or near the work site. The proposed text repeated language enacted in 1955 and amended in 1965 and 1974, then repealed in 1985.

The AG identified one statutory change since repeal: Idaho Code § 67-2402 had renamed the Department of Labor and Industrial Services the Department of Labor. The certificate said the petitioners “should probably change” the agency designation in the proposed text. It did not reach a separate conclusion on the proposal’s constitutionality or overall legal validity. The AG’s recommendations were advisory, and the petitioners could accept or reject them.

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.

Common questions

Which public contracts would have been covered?

The proposed section covered contracts let by Idaho or its counties, cities, school districts, and other political subdivisions for construction, repair, or maintenance of public buildings and public works projects involving laborers or mechanics. Their advertised specifications would have had to list minimum wage rates and fringe benefits for the classes of workers performing the contract.

How would the proposed prevailing rate have been set?

The proposed text first looked to wage rates and fringe benefits compiled for the county by the Davis-Bacon Section of the U.S. Department of Labor. If no such rates were compiled, the director of the state labor department would have surveyed wages and benefits paid at or near the work site. In either case, the result would have been deemed the prevailing rate at the county seat.

Did the AG approve the proposed wage rule?

The certificate did not make a separate finding that the rule was constitutional or free of other legal obstacles. It described the proposal as an attempt to restore repealed statutory language and suggested updating the labor department’s name. The recommendation was advisory.

Background and statutory framework

The AG said the proposed wording matched language enacted in 1955, amended in 1965 to add fringe benefits, and amended in 1974 to change the agency title. The legislature repealed § 44-1006 in 1985. By the time of this certificate, Idaho Code § 67-2402 had changed the agency’s name again, creating the drafting point the AG raised.

Citations

• Idaho Code § 34-1809
• Idaho Code § 44-1006
• Idaho Code § 67-2402
• 1955 Idaho Session Laws 77-78; 1965 Idaho Session Laws 456; 1974 Idaho Session Laws 1056; 1985 Idaho Session Laws 8
• Davis-Bacon Act

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