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State v. Olsen

Supreme Court of Idaho

December 21, 2016

STATE OF IDAHO, Plaintiff-Respondent,
BLAIR OLSEN, Defendant-Appellant.

         2016 Opinion No. 147

         Appeal from the District Court of the Seventh Judicial District of the State of Idaho, in and for Jefferson County. Hon. Gregory W. Moeller, District Judge.

         The judgment of the district court is affirmed in part and remanded with intructions.

          Gary Cooper, Cooper & Larsen, Chartered, Pocatello, argued for appellant.

          Kenneth K. Jorgensen, Deputy Attorney General, Boise, argued for Respondent.

          EISMANN, Justice.

         This is an appeal out of Jefferson County from a judgment that the Defendant was guilty of three counts of misuse of public funds. We affirm the judgment as to one count and remand this case to the district court with instructions to vacate the convictions as to the other two counts.

         I. Factual Background.

         Blair Olsen served as sheriff of Jefferson County from January 1989 until May 2015, when he resigned due to his conviction in this case. While he was the sheriff, the county provided Mr. Olsen with two cell phones and paid the bills for those phones. It initially did so because of unreliable service in different sides of the county. He carried one cell phone with a service provider for use in one side of the county and the other cell phone with a different service provider for use in the other side of the county. He also carried a personal cell phone and paid the charges for that service plan from his own funds. Once county-wide coverage was available from one of the providers, he discontinued service with the other provider and had both of his county-provided cell phones with the same provider. One cell phone was to be his primary cell phone and the other was to be his backup cell phone. At the same time, he terminated his personal cell phone service, but had the telephone number of his personal cell phone transferred to the backup cell phone. At some point, he permitted his wife to carry the backup cell phone for her personal use.

         In 2012, Mr. Olsen had an opponent in the primary election to be held in May. A few days before the election, an employee in the county clerk's office contacted a county commissioner about Mr. Olsen allowing his wife to use the backup cell phone. The county commissioner contacted Mr. Olsen about the issue, and she testified that "he explained to me that it was his backup phone and that his wife had the phone to keep it charged and to keep it accessible to him." The county commissioner also testified that Mr. Olsen told her that his wife did use the backup cell phone for her personal use. The commissioner called a special meeting with the other two commissioners to inform them in case it became an issue in the election. The commissioners met on May 4, 2012, and decided to add a provision regarding cell phone usage in the county personnel policy. Mr. Olsen discontinued his wife's use of the backup cell phone to avoid her use of the phone becoming a political issue.

         On July 9, 2012, the commissioners adopted a county cell phone policy. It included a provision stating: "Department Heads are responsible for managing the personal use of County provided cellular phones. Jefferson County shall not be held liable for additional costs incurred from employees' personal cell phone usage and shall be reimbursed by the same for equal value."

         The issue of Mr. Olsen's wife using the backup cell phone became an issue not only in the primary election but also in the upcoming general election in November. On July 27, 2012, the county commissioners issued a written statement which provided in part:

The Board of County Commissioners, both past and present, have [sic] authorized the expenditure of a "back-up" cell phone for the Sheriff. The County Commissioners are responsible for reviewing claims submitted. It is their responsibility to oversee appropriate expenditures. All cell phone expenditures were approved since the implementation of cell phones to the county.
We trust that each Elected Official and Department Head will use County resources in the most appropriate manner, according to their own particular circumstances. This County is lead [sic] by intelligent, hard working, dedicated officials who are doing the best possible job with available resources. The Board has no desire to micromanage the daily use of County cell phones. Department Heads and Officials are very capable of that task. We expect those placed in charge of cell phones to make wise choices in the use of this valuable resource. We have encouraged all entrusted with this resource, through our Cell Phone Policy, to use and administer their cell phones appropriately for the best use of taxpayer funds and to avoid any misuse.

         Mr. Olsen asked the county commissioners to refer the matter to the Attorney General in an attempt to clear his name, and the commissioners did so. On January 23, 2015, a deputy attorney general obtained an indictment against Mr. Olsen charging him with three felony counts of knowingly using public money to make purchases for personal purposes based upon his wife's use of the backup cell phone. The charges were tried to a jury, and Mr. Olsen was found guilty of all three counts. The district court withheld judgment and placed Mr. Olsen on three years' probation, and he timely appealed.

         II. Did the Prosecution of Mr. Olsen Violate the Separation of Powers?

         Mr. Olsen contends that the prosecution of Mr. Olsen violated Article II, section 1, of the ...

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