Who hires and fires the staff of the Idaho POST Academy: the POST Council or the Director of the Department of Law Enforcement?
Plain-English summary
The chair of the Idaho Peace Officers Standards and Training Council asked who has the legal authority to hire and fire the staff of the POST Academy: the council itself, or the Director of the Department of Law Enforcement (DLE). The AG concluded that the director was the appointing authority, because the council was created within DLE and the council's enabling statute did not give it independent authority to make personnel decisions.
Idaho's 1972 reorganization amendment (Idaho Const. art. IV, § 20) consolidated executive functions into not more than 20 departments. Idaho Code § 67-2402 placed the Department of Law Enforcement among them. Idaho Code § 67-2705 then gave each department head the default power to appoint and remove subordinate employees "unless specifically provided otherwise" by statute. Idaho Code § 67-5302(2), the merit-system definition of "appointing authority," reinforced that the appointing authority is whoever is "authorized by statute or lawfully delegated authority" to hire.
The POST Council's powers are spelled out in Idaho Code § 19-5109, which lists ten substantive powers: setting minimum basic training, certifying officers, approving training schools, disbursing financial assistance to attendees, and so on. The list does not include the power to hire and fire staff. The AG read that as a deliberate omission. By contrast, other entities housed within DLE (such as the State Brand Board under Idaho Code §§ 25-1102 to 25-1104) are explicitly given the power to appoint a director and staff. The drafters knew how to grant that power when they wanted to.
A historical sweep through the council's predecessor entities reinforced the conclusion. The 1969 Law Enforcement Planning Commission was given express statutory authority to hire a full-time director (1969 Idaho Sess. Laws, ch. 415, § 13). The 1981 amendments (ch. 307) eliminated that authority when the LEPC was replaced by the POST Council. The legislature affirmatively pulled hiring power out of the standard-setting body.
The AG also concluded that the council could not fix the gap by rulemaking. Under the Administrative Procedure Act, a "rule" implements or interprets a statute, and the rule has to fit within statutory authority. A POST Council rule purporting to give the council hiring and firing authority would not have the force of law because no statute supports it.
Currency note
This opinion was issued in 1990. 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 or arrangement mentioned here. In particular, the Idaho Department of Law Enforcement was reorganized into the Idaho State Police in 2000, and the POST Council's enabling statutes were renumbered and amended after this opinion.
Background and statutory framework
The POST Academy is the state's central training institution for Idaho peace officers. The council that approves training standards (the POST Council) was created in its modern form by 1981 Idaho Sess. Laws, ch. 307, replacing the older Law Enforcement Planning Commission. The 1981 act was a structural simplification: it kept the standard-setting function but stripped out the LEPC's separate authority to hire its own staff. The academy's day-to-day operation was thereafter run by employees of the Department of Law Enforcement, with the council functioning as a policy and certification body rather than as the academy's employer.
The dispute the AG addressed was a recurring one in agencies organized this way. Standard-setting boards often want operational control over the staff that runs the program they oversee, both to enforce their training requirements and to control the curriculum. Department heads want the power to manage their subordinate units. Idaho's 1972 reorganization amendment was designed to resolve such tensions in favor of the department head, with appointing authority following the chain of command unless the legislature said otherwise.
The "rules of the council" referenced in the opinion sought to assert hiring authority in a council rule, on the theory that the council could supplement Idaho Code § 19-5109 by rulemaking under Idaho Code § 19-5107. The AG rejected that, citing the Administrative Procedure Act's definition of "rule" (a statement of general applicability that "implements or prescribes law or interprets a statute"). A rule cannot create power that no statute confers; that distinguishes a rule from a statute.
Common questions
Could the POST Council have appealed to the governor or the legislature to flip this?
At the time, yes. The legislature could have amended Idaho Code § 19-5109 to add hiring authority. The AG opinion is a reading of statutes as they stood in 1990; the legislature retains the power to change them.
Did the AG say the director had not delegated hiring to the council?
No. The AG specifically declined to address that question, noting at the end that "[w]hether the Director of the Department of Law Enforcement has in fact delegated hiring and supervisory authority to the POST Council is not presented in your question or addressed in this opinion." So the answer to who legally must hire is "the director"; whether the director has informally delegated day-to-day decisions was a separate factual question.
Why does the State Brand Board get to hire its own staff but the POST Council does not?
Because the legislature wrote it that way. Idaho Code § 25-1103 expressly empowers the State Brand Board to appoint the brand inspector, and § 25-1104 then lets the brand inspector hire staff. The POST Council's enabling statute (§ 19-5109) lists no comparable power. The default rule in Idaho Code § 67-2705 does the rest of the work.
What about the council's authority to spend POST account money on "salaries"?
Idaho Code § 19-5116(a)(2) lets the council disburse the POST account for "salaries, costs and expenses relating to such training," but the AG read that in light of the only salary reference in § 19-5109, which deals with paying salaries and living expenses for trainees attending approved programs. Spending authority over the trainees' salaries is not the same as authority to hire and fire academy staff.
Citations
Idaho Constitution: art. IV, § 20 (executive reorganization, 20-department limit).
Idaho statutes: § 19-5107 (POST rulemaking authority); § 19-5109 (powers of the POST Council); § 19-5116(a)(2) (POST account disbursements); § 19-5203 (Idaho Law Enforcement Telecommunications System board); § 23-404 (POST training reimbursement funding source); §§ 25-1102 to 25-1104 (State Brand Board hiring); § 67-2402 (executive branch structure); § 67-2405; § 67-2705 (default appointing authority of department heads); § 67-2901 (Department of Law Enforcement structure); § 67-5201(7) (APA definition of "rule"); § 67-5302(2) (merit-system definition of "appointing authority").
Session laws: 1969 ch. 415 § 11, p.1154 (LEPC creation, peace-officer subcommittee authority); 1973 ch. 172 § 1, p.362 (one-year POST certification requirement); 1974 ch. 89 § 1 p.1185 and § 18 p.606 (1974 reorganization placing LEPC); 1980 ch. 144 § 1 p.309 (LEPC moved to DLE Director); 1981 ch. 307 p.628 (POST Council replaces LEPC, hiring authority eliminated).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP90-05.pdf
Original opinion text
(
STATE OF IDAHO
OFFICE OF THE ATIORNEY GENERAL
BOISE 83720
JIM JONES
ATIORNEY GENERAL
ATTORNEY GENERAL OPINION NO.
TELEPHONE
IZ081 334-Z400
90-5
TO: Blynn B. wilcox, Chairman
Idaho Peace Officers Standards
and Training Council
109 South Main
Soda Springs, ID 83276
Per Request for Attorney GeneralIs Opinion
QUESTION PRESENTED:
Is the Director of the Department of Law Enforcement the appointing authority for administrative purposes over the Idaho Peace Officers Standards and Training (POST) Academy?
CONCLUSION:
Yes, the Director of Law Enforcement is the appointing authority for the staff of the POST Academy, since the POST Council is created within the department and has no specific authority to hire and fire employees. Therefore, the director is the appointing authority by operation of Idaho Code § 67-2405.
ANALYSIS:
Your inquiry raises the question whether the POST Council or the Director of the Department of Law Enforcement is the appointing authority for the Executive Director of the POST Academy. The answer to your question requires an understanding of where the POST Council is situated within the overall structure of state government.
State government was reorganized effective January 1, 1975, by a 1972 amendment to the Idaho Constitution:
Art. 4, section 20. Departments limited. All executive and administrative officers, agencies, and instrumentalities of the executive department of the state and their respective functions, powers, and duties, except for the office of governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general and superintendent of public instruction, shall be allocated by law among and within not more than twenty (20) departments by no later than January 1, 1975. Subsequently, all new powers or functions shall be assigned to departments, divisions, sections or units in such a manner as will tend to provide an orderly arrangement in the administrative organization of state government. Temporary agencies may be established by law and need not be allocated within a department; however, such temporary agencies may not exist for longer than two (2) years.
The implementing legislation listed 19 agencies, including the Department of Law Enforcement:
67-2402. Structure of the executive branch of Idaho state government. - (1) Pursuant to section 20, article IV, Idaho Constitution, all executive and administrative offices, agencies, and instrumentalities of the executive department of state, except for those assigned to the elected constitutional officers, are allocated among and within the following departments:
Department of law enforcement . . . .
Key to this question is § 67-2405, which prescribes the authority of agency directors:
67-2705. Powers and duties of department heads. Unless specifically provided otherwise, each department head shall:
(1) Supervise, direct, account for, organize, plan, administer and execute the functions vested within the department as provided by law.
(8) Subject to law, and the provisions of the state's merit system, establish and make appointments to necessary subordinate positions, and abolish unnecessary positions.
(9) Each department head may, subject to law, and the state merit system where applicable, transfer employees between positions, remove persons appointed to positions, and change the duties, titles, and compensation of employees within the department.
(10) Delegate any of the functions vested within the department head to subordinate employees, except the power to remove employees or fix their compensation.
(Emphasis added.) Thus, the 19 department heads are empowered to establish and make appointments to positions within their respective departments unless that power is specifically given by law to another appointing authority.
This same concept is reinforced by the Personnel System law which defines "appointing authority" as "the officer, board, commission, person or group of persons authorized by statute or lawfully delegated authority to make appointments or to employ personnel in any department." (Emphasis added.) Idaho Code § 67-5302(2).
Therefore, it is necessary to consider the statutory provisions that created the Peace Officers Standards and Training Council to determine whether authority to hire and fire staff is included in that entity's enabling statute.
The Department of Law Enforcement was created in 1919, and its structure is described in chapter 29, title 67, Idaho Code. Specifically, § 67-2901 empowers the director to "exercise all of the powers and duties necessary to carry out the proper administration of the department, and may delegate duties to employees and officers of the department." There is, however, quite a variety in the statutory powers of the director in relation to the various entities created within the department.
For example, the Teletype Communications Board is appointed by the governor, and is composed of county sheriffs, chiefs of police and state police. Though the board exists within the Idaho Department of Law Enforcement and the director of DLE is the executive officer of the board, the board has exclusive management control over ILETS, the state's law enforcement communications system. Idaho Code § 19-5203. Similarly, the State Brand Board exists within the Department of Law Enforcement, with board members appointed by the governor. Idaho Code § 25-1102. The board, rather than the director of the department, appoints the state brand inspector, who in turn hires staff. Idaho Code §§ 25-1103, 25-1104.
The specific powers of the POST Council are more narrowly drawn:
Powers of the council standards of training, education and employment of peace officers certification - Penalties. (a) It shall be the duty of and the council shall have the power:
(1) To establish the requirements of minimum basic training which peace officers shall complete in order to be eligible for permanent employment as peace officers, and the time within which such basic training must be completed.
(2) To establish the requirements of minimum education and training standards for employment as a peace officer in probationary, temporary, part-time, and/or emergency positions.
(3) To establish the length of time a peace officer may serve in a probationary, temporary, and/or emergency position.
(4) To approve, deny approval or revoke the approval of any institution or school established by the state or any political subdivision or any other party for the training of peace officers.
(5) To establish the minimum requirements of courses of study, attendance, equipment, facilities of all approved schools, and the scholastic requirement, experience and training of instructors at all approved schools.
(6) To establish such other requirements for employment, retention and promotion of peace officers, including minimum age, physical and mental standards, citizenship, moral character, experience and such other matters as relate to the competence and reliability of peace officers.
(7) To certify peace officers as having completed all requirements established by the council in order to be eligible for permanent employment as peace officers in this state.
(8) To receive and file for record copies of merit regulations or local ordinances passed by any political subdivision.
(9) To maintain permanent files and transcripts for all peace officers certified by the council to include any additional courses or advance courses of instruction successfully completed by such peace officers while employed in this state.
(10) To receive applications for financial assistance from the state and from political subdivisions and disburse available state funds to the state and to political subdivisions for salaries and allowable living expenses or any part thereof, as authorized by the council, incurred while in attendance at approved training programs and schools. The annual reimbursements authorized by this section shall not exceed the funds available for such purpose and authorized by section 23-404, Idaho Code.
Idaho Code § 19-5109.
Thus, the POST Council has no statutory authority to hire and fire employees. In addition, the statutory history of the POST Council reveals that the council has never been the appointing authority for the academy, though its predecessor organization was.
The council's predecessor was the Law Enforcement Planning Commission (LEPC), which was established in 1969 to take advantage of federal grants relating to law enforcement. The commission was authorized to "establish, and the chairman appoint, such subcommittees or advisory councils as it deems fit, including a peace officer standards and training subcommittee, and provide funds for the meetings of such subcommittees or councils." (Emphasis added.) 1969 Idaho Session Laws, ch. 415, § 11, p.1154.
The LEPC itself had the authority to hire staff:
Section 13. Subject to the approval of the governor, the commission shall appoint and fix the salary of a full-time director. Other subordinate staff necessary to accomplish the commission's mission shall be covered by the provisions of chapter 53, title 67, Idaho Code [the merit system].
Id. at § 13, p.1154.
The statute was amended in 1973 to require certification by the POST Academy within one year after a peace officer becomes employed. Sections 11 and 13 of the original act were unchanged, leaving the LEPC to set the standards for peace officer training and to hire staff. 1973 Idaho Session Laws, ch. 172, § 1, p.362.
The 1974 reorganization of state government placed the LEPC in the Governor's Office, Division of Budget, Policy Planning and Coordination as a department. The LEPC was given explicit authority to hire a chief, rather than a director. 1974 Session Laws, ch. 89, § 18, p.606.
The next amendment significant to this issue occurred in 1980, when the Law Enforcement Planning Commission was moved to the office of the Director of the Department of Law Enforcement. 1980 Idaho Session Laws, ch. 144, § 1, p.309. LEPC still set the training standards and had the authority to hire staff.
The final amendment of this section left the law as it is today - the previous statute was repealed and replaced by almost identical language. 1981 Session Laws, ch. 307, p.628. The effect of the new section was that LEPC passed out of existence and was replaced by the POST Council as the standard-setting agency. Of critical importance here, the statutory authority to hire a director and staff was also eliminated.
Thus, throughout its early history, the POST Council was a standard-setting body separate from the hiring authority, the LEPC, which was absorbed by the Department of Law Enforcement.
The opinion request refers to some conflict between Idaho Code and POST Council rules on this subject. The Administrative Procedure Act (APA) defines a rule as "[a]ny agency statement of general applicability that implements or prescribes law or interprets a statute as the statement applies to the public." Idaho Code § 67-5201(7). (Emphasis added.) The concept does not include statements concerning only the internal management of an agency. Id.
Section 19-5107 authorizes the council to promulgate rules under the APA "as necessary to carry out the provisions of this chapter." Since there is no statutory authority for the POST Council to hire and fire in the listed "Powers of the council," § 19-5109, any rule relating to that topic would not have the force of law. A policy relating to the internal operation of the council would not be a rule that has the force of law, and would not prevail over the specific authority of agency directors in chapter 24, title 67.
Section 19-5116(a)(2) provides that "[a]ll moneys deposited to the [peace officers standards and training] account shall be expended by the peace officers standards and training counsel [sic] for the following purposes: (2) Salaries, costs and expenses relating to such training. . . ." This language is tempered by the explicit powers of the POST Council. The only reference to salary in § 19-5109, governing powers of the council, is the payment of "salaries and allowable living expenses . . . incurred while in attendance at approved training programs and schools." Thus, this language relates only to the students in approved programs.
The authority "[t]o approve . . . any institution or school established by the state or any political subdivision or any other party for the training of peace officers," taken with the authority to expend money on training, indicates that if a state university, for example, provided academy-like courses for police officers, then the instructor's salary and costs could be paid from the POST account. Mere authority to approve of the existence and continuation of the academy, however, does not include hiring and firing authority.
SUMMARY:
When an entity is created within a department, the director of the department is the hiring and firing authority unless provided otherwise by statute. The POST Council has not had such statutory authority at any time during its 20-year existence, and cannot validly create a rule providing the authority to hire and discharge in the absence of statutory authority. Whether the Director of the Department of Law Enforcement has in fact delegated hiring and supervisory authority to the POST Council is not presented in your question or addressed in this opinion.
AUTHORITIES CONSIDERED:
-
Idaho Constitution
Art. 4, § 20. -
Idaho Code
Idaho Code § 19-5107.
Idaho Code § 19-5109.
Idaho Code § 19-5116(a)(2).
Idaho Code § 19-5203.
Idaho Code § 23-404.
Idaho Code § 25-1102.
Idaho Code § 25-1103.
Idaho Code § 25-1104.
Idaho Code § 67-2402.
Idaho Code § 67-2405.
Idaho Code § 67-2705.
Idaho Code § 67-2901.
Idaho Code § 67-5201(7).
Idaho Code § 67-5302(2).
1969 Idaho Session Laws, ch. 415, § 11, p.1154.
1973 Idaho Session Laws, ch. 172, § 1, p.362.
1974 Idaho Session Laws, ch. 89, § 1, p.1185.
1974 Idaho Session Laws, ch. 89, § 18, p.606.
1980 Idaho Session Laws, ch. 144, § 1, p.309.
1981 Idaho Session Laws, ch. 307, p.628.
Dated this 28th day of June, 1990.
JIM JONES
Attorney General
State of Idaho
Analysis By:
JEANNE T. GOODENOUGH
Deputy Attorney General
Idaho Personnel Commission