Olsen’s felonies reduced to one
Idaho Supreme Court Justices agreed that former Jefferson County Sheriff Blair Olsen should have been charged with one felony misuse of funds instead of three.
In Dec 21 opinion, Justice Daniel T. Eismann wrote, and justices agreed, that the Idaho Office of the Attorney General did not violate governmental separation of powers, that the misuse of public funds statue was not unconstitutionally vague, and that Olsen’s protection against Double Jeopardy was not violated.
However, justices also agreed that the felony charges, arising from his issuance of a county-paid cell phone to his wife for her personal use, should have been aggregated into just one count and asked the Seventh Judicial District to vacate two of Olsen’s three convictions.
Olsen’s attorney Gary Cooper declined to speak to the Jefferson Star about the opinion.
Idaho Attorney General Lawrence Wasden, in an emailed statement, thanked the Supreme Court for their analysis.
“This was a difficult case for my office. I am proud of the deputies in my office who brought it to resolution and am grateful that the Idaho Supreme Court provided thoughtful analysis and direction to assist Idaho’s elected officials in ethical governance,” Wasden said.
In a Dec. 7 appeal, Cooper argued that the attorney general’s prosecution of Olsen for misuse of public funds violated the Idaho Constitution’s separation of powers. He said that after the Jefferson County Board of Commissioners found that the use of the cell phone was for a county purpose, it should have been the end of the issue.
In the opinion, Eismann wrote that boards of commissioners cannot absolve public officers of crimes, nor can they grant pardons.
“Thus, upon learning of the issue regarding the use of a backup cell phone by Mr. Olsen’s wife, the county commissioners had no power to absolve him of any criminal liability. Therefore, this prosecution did not violate the separation of powers,” he wrote.
Cooper also argued that the statute prohibiting misuse of public funds was void as it was unconstitutionally vague. He said that the law did not account for incidental use of public funds for private benefit, like sharing a county-paid hotel room with a spouse, or driving a police vehicle home.
Eismann wrote that void-for-vagueness requires that an ordinary citizen could not understand the statute. He said that they could.
“The contrast between public and governmental on the one hand and personal on the other provides sufficient definiteness not only for an ordinary person to understand what conduct is prohibited, but to provide sufficient guidelines for law enforcement,” he wrote. “To violate the statute, the person must be making the purchase with public funds for a personal purpose.”
In a footnote, however, he said that as the back up cell phone did not cost the county any extra money regardless of whether it was used or not, it would be hard to imagine how Olsen’s wife’s use would constitute misuse of public funds.
“However, Mr. Olsen has not challenged on appeal the sufficiency of the evidence to support the verdict,” he wrote.
Cooper also argued Dec. 7 that the three counts of felony misuse of funds constituted a violation of Olsen’s protection against Double Jeopardy, as the charges for three budget years was for one continuing act.
Eismann said that a prosecution for each purchase or charge would not have violated the Double Jeopardy Clause, however, the law specifically states that the charges can be aggregated into one count.
He said that the District Court erred in its ruling that the law states the counts “may” be aggregated into one count but does not say that they “have to” be aggregated.
He cited Idaho case law that the rule of lenity states that criminal law should be “strictly construed in favor of defendants.”
“Considering the plain wording of the statute, we hold that when the State chose to aggregate the separate incidents, it was required to aggregate all of them into one count. It could not aggregate them by year into separate counts. Therefore, two of the convictions must be vacated.
A Twin Falls Jury convicted Olsen, on May 13, 2015, of three felony counts of misuse of public funds for issuing a county-paid cell phone to his wife. Seventh Judicial District Judge Gregory Moeller sentenced Olsen on June 22, 2015 to three years of probation, 15 days in jail, fines, restitution, and granted a withheld judgment, so that the charges would be dropped with successful completion of probation.
Olsen has successfully completed all of the requirements for discharge from probation, but District Judge Dane Watkins, on Oct. 6, 2016, said that Olsen should serve at least two years of probation. He invited Olsen to reapply for early release on the two-year anniversary of his sentencing.