Opinion No. 147
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.
judgment of the district court is affirmed in part and
remanded with intructions.
Cooper, Cooper & Larsen, Chartered, Pocatello, argued for
Kenneth K. Jorgensen, Deputy Attorney General, Boise, argued
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.
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
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.
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."
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.
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.
Did the Prosecution of Mr. Olsen Violate the Separation of
Olsen contends that the prosecution of Mr. Olsen violated
Article II, section 1, of the ...