20231031_TRSContract_at.pdf

DECISION MEMORANDUM 1

DECISION MEMORANDUM

TO: COMMISSIONER ANDERSON
COMMISSIONER HAMMOND
COMMISSIONER LODGE
COMMISSION SECRETARY
LEGAL

FROM: ADAM TRIPLETT
DEPUTY ATTORNEY GENERAL

DATE: OCTOBER 31, 2023

RE: IN THE MATTER OF THE RENEWAL OF THE TELECOMMUNICATION
RELAY SERVICE FUND (TRS) ADMINISTRATOR’S CONTRACT

The current contract between the Commission and the Administrator of the
Telecommunication Relay Service Fund (“TRS”), Kathleen Toohill is due to expire on October
31, 2023. Idaho Code § 61-1301 requires the establishment and operation of a state TRS program
to provide telecommunications relay services to hearing-impaired and speech-impaired persons.
This program will be carried out through a TRS Administrator and a TRS provider. The Idaho
Telecommunications Relay Services code provides that “the commission shall contract with a
qualified person to administer the program in accordance with the purposes of this chapter and to
secure certification of the program by the federal communications commission.” Idaho Code § 61-
1303(1)(a). Rule 101 states that “the Commission shall appoint and contract with a qualified person
to administer the TRS program in accordance with the requirements of state and federal law.”
IDAPA 31.46.02.101.01.
BACKGROUND
Pursuant to the TRS statutes, the Commission contracted with Ms. Toohill to administer
the program. Under the terms of the contract, Ms. Toohill performs the duties and obligations of
the TRS Administrator imposed by Idaho Code § 61-1301 et seq.; the Commission’s TRS Rules
(IDAPA 31.46.02.000 et seq.); orders of the Commission, and the current contract. The legal
requirements of all such statutes, rules, and orders, as currently in effect or amended in the future,
are incorporated by reference into the contract. TRS Contract § 2.1.

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Under the current contract, the Administrator is compensated for duties performed in the
administration of the TRS at a rate of $40,000 annually, not including additional compensable
expenses described and authorized in Paragraph 4.2 of the contract. The TRS Administrator’s
compensation shall be from the TRS Fund. TRS Contract § 3.1.
The current contract also provides that the TRS fund must be audited by a neutral third
party at the end of the contract term or upon termination of the contract pursuant to Paragraph 4.4.
A copy of the Audit will be sent to the Commission upon completion. TRS Contract § 2.6.
The TRS Contract will be renewed for a term of three (3) years with an effective date of
November 1, 2023, and a new expiration date of December 31, 2026. TRS Contract § 3.3. Either
party may terminate the Contract by giving 90 days’ notice, in writing and delivered by certified
mail or in person to the other party. TRS Contract § 3.4.
STAFF RECOMMENDATION
Staff believes that Ms. Toohill has performed her duties admirably as the TRS
Administrator. During her tenure, she has efficiently discharged her duties. Staff recommends that
the Commission renew this contract for a three (3) year period to expire on December 31, 2026.
COMMISSION DECISION
Does the Commission wish to renew the current contract with Ms. Toohill as the TRS
Administrator for a three (3) year period ending December 31, 2026, pursuant to Idaho Code § 61-
1303(1)(a) and authorize the Commission President to sign the contract as attached?

________________________________
Adam Triplett
Deputy Attorney General

I:\Legal\CONTRACTS\TRS_Toohill\MEMOS\20231031_TRS Contract.docx

DECISION MEMORANDUM 3

CONTRACT FOR TRS ADMINISTRATOR

1. Identification of Parties and Purpose of Contract
1.1 Parties. This contract is entered into by and between the IDAHO PUBLIC
UTILITIES COMMISSION (Commission) whose principal office is located at 11311 W. Chinden
Blvd., Building 8 Suite 201-A, PO Box 83720, Boise, Idaho 83720-0074, [phone], and
KATHLEEN TOOHILL (TRS Administrator), with offices located at 2900 N Torreys Peak Dr,
Superior, CO 80027, [phone].
1.2 Statutory Authority. Idaho Code §§ 61-1301 et seq. requires the establishment
and operation of a state telecommunications relay services (TRS) program to provide
telecommunications relay services to hearing-impaired and speech-impaired persons. This
program will be carried out through a TRS Administrator and a TRS provider. Idaho Code § 61-
1303(1)(a) provides that the Commission shall contract with a qualified person to administer the
program (the TRS Administrator).

2. Responsibilities of the TRS Administrator
2.1 Incorporation by Reference. The TRS Administrator shall fulfill the duties and
obligations imposed by Idaho Code §§ 61-1301 et seq.; the Commission’s TRS Rules (IDAPA
31.46.02.000 et seq.); orders of the Commission, and this contract. The legal requirements of all
such statutes, rules and orders, as currently in effect or amended in the future, are incorporated by
reference into this contract.
2.2 Availability of TRS Administrator. The TRS Administrator shall meet with the
Telephone Industry Advisory Committee (or its representatives) appointed by the Commission,
the Idaho State Council for the Deaf and Hard of Hearing (or its representatives), the Idaho State
Council on Developmental Disabilities (or its representatives), and with Commission Staff and the
Commissioners as necessary to perform the Administrator’s duties under this contract.
2.3 Confidential Information. Some data provided for the TRS Administrator’s use
may be deemed confidential by entities from which or about which the information has been
provided. When information claimed to be confidential has been provided to the TRS
Administrator, she will not disclose the information received from any entity to any person (other

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than the Commission, its Staff or consultants hired by the TRS Administrator) without the prior
written consent of the provider of the information or the entities about which the information has
been provided.
2.4 Specific Duties. The TRS Administrator shall:
a. Establish a checking account for the receipt and distribution of funds paid into and
out of the TRS Fund, respectively. The checking account shall be established at a reputable
financial institution acceptable to the Commission. The Administrator shall exercise full access
and control over the checking account. Additionally, the checking account shall have two
Commission employees on the account signature card: the President of the Commission (or
designee) and the Commission Executive Director (or designee). The checking account shall be
established so that the above-listed Commission employees may only access and make changes to
the checking account if both Commission employees authorize the action. The checking account
shall be established so that the Commission receives a monthly account statement directly from
the financial institution.
b. Timely pay all ordinary and necessary expenses of the TRS Administrator under
this contract.
c. Enter into and/or administer a contract with the provider of the TRS program,
which contract and provider have been approved by the Commission (Idaho Code § 61-
1303(1)(b)(vi));
d. Hire necessary sign language interpreters when meeting with members of the
hearing-impaired and speech-impaired communities.
e. Conduct meetings with the Telephone Industry Advisory Committee (or its
representatives) appointed by the Commission, the Idaho State Council for the Deaf and Hard of
Hearing (or its representatives) as necessary to discuss the TRS program and the TRS Fund and
matters of interest related to TRS (Idaho Code § 61-1303(1)(b)(i) and (vii)); and
f. Perform other services concerning the TRS program as found reasonable or
necessary by the Commission in the course of this contract, including offering appropriate advice
and recommendations to the Commission.
2.5 Insurance. The Administrator shall maintain comprehensive general liability
insurance in the minimum amount of $1,000,000 per occurrence. The insurance company shall be
properly licensed to do business in Idaho and reasonably satisfactory to the Commission.

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2.6 Third-Party Audit. The Administrator shall contract with a neutral third party to
audit the TRS Fund at the end of the contract term or upon termination of the contract pursuant to
Paragraph 4.4. A copy of the Audit will be sent to the Commission upon completion
2.7 Fidelity Bond. The Administrator shall maintain a fidelity bond for the benefit of
the Commission. The bond shall insure the Commission from losses of up to $500,000 and shall
be maintained by the Administrator for one year after the termination of the contract if the contract
is not renewed.

3. Compensation – Term of Contract
3.1 Compensation of Administrator. The TRS Administrator’s compensation for
duties performed in the administration of the TRS Fund during the term of this contract shall be
forty thousand dollars ($40,000) per year, not including additional compensable expenses
described and authorized in Paragraph 4.2. The TRS Administrator’s compensation shall be from
the TRS Fund.
3.2 Additional Compensable Expenses. The TRS Administrator is authorized to
incur expenses for sign language interpreters, for legal services, for necessary travel and other
reasonable expenses of administration of the TRS Fund including, but not limited to, reasonable
office expenses and the costs of insuring the TRS Administrator against liability for errors or
omissions arising out of the performance of her duties as Administrator. Travel expenses shall be
billed at the mileage, lodging and per diem rates not to exceed those amounts authorized for claims
by State employees. A report of expenses authorized by this paragraph shall be submitted once
monthly to the Commission.
3.3 Term. This contract shall be effective from November 1, 2023, upon the signatures
of the Commission President and the TRS Administrator. This contract shall continue in effect
until terminated by either party or until December 31, 2026. The TRS Administrator shall be due
any unpaid compensation and/or expenses under Section 4 of the contract for duties performed
pursuant to this contract up to the time of termination.
3.4 Termination.
a. Mutual Termination. This contract may be terminated by mutual consent of both
parties, or by either party by giving ninety (90) calendar days’ notice, in writing and delivered by
certified mail or in person to the other party.

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4. Miscellaneous Provisions
4.1 No Assignment of Contract. This contract shall not be assigned by either party
without the prior written consent of the other party.
4.2 Amendment to Contract. Any changes to this contract must be in writing and
signed by the Commission and the Administrator.
4.3 Indemnification.
a. The TRS Administrator shall indemnify, defend and save harmless the State of
Idaho, its officers, agents and employees from and against any and all liability, claims, damages,
losses, costs, expenses, actions, attorneys’ fees and suits whatsoever caused by or arising out of
the Administrator’s negligent or wrongful performance, acts or omissions under this contract or
failure to comply with any state or federal statute, law, regulation or rule. Nothing contained in
this contract shall be deemed to constitute a waiver of the State of Idaho’s sovereign immunity,
which immunity is hereby expressly reserved.
b. Upon receipt of the State’s tender of indemnity and defense, the TRS Administrator
shall immediately take all reasonable actions necessary, including, but not limited to, providing a
legal defense for the State, to begin fulfilling its obligation to indemnify, defend, and save harmless
the State. The TRS Administrator’s indemnification and defense liabilities described herein shall
apply regardless of any allegations that a claim or suit is attributable in whole or in part to any act
or omission of the State under this Agreement. However, if it is determined by a final judgment
that the State’s negligent act or omission is the sole proximate cause of a suit or claim, the State
shall not be entitled to indemnification from the TRS Administrator with respect to such suit or
claim, and the State, in its discretion, may reimburse the TRS Administrator for reasonable defense
costs attributable to the defense provided by any Special Deputy Attorney General appointed
pursuant to Subparagraph 5.3(c).
c. Any legal defense provided by the TRS Administrator to the State under this section
must be free of all conflicts of interest, even if retention of separate legal counsel for the State is
necessary. Any Attorney appointed to represent the State must first qualify.as and be appointed by
the Attorney General of the State of Idaho as a Special Deputy Attorney General pursuant to Idaho
Code §§ 67-1401(13) and 67-1409(1).
4.4 Not an Employment Contract. This contract is not an employment contract. The
TRS Administrator at all times remains an independent contractor, and this contract does not create

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an employee/employer relationship. Idaho Code § 61-1303(1)(a). The TRS Administrator shall be
responsible for paying all employment-related taxes and benefits, such as federal, state and local
income tax withholding, social security contributions, and employment insurance premiums,
health and life insurance premiums, pension contributions, and similar items.
4.5 Worker’s Compensation. Before this contract takes effect, the TRS
Administrator must submit evidence of worker’s compensation insurance coverage or provide a
statement that she is the owner of a sole proprietorship, a working member of a partnership, or an
officer of a corporation owning more than 10% of the issued and outstanding voting stock of the
corporation. See Idaho Code § 72-212. A certificate of proof of coverage from the TRS
Administrator’s insurance carrier will satisfy the requirement of submission of proof of worker’s
compensation coverage.
4.6 Compliance with Law. In fulfilling this contract, the TRS Administrator shall
comply with all applicable laws, rules, and determinations of government agencies.
4.7 Tax ID. The TRS Administrator’s tax identification number is 320-72-0418
4.8 Contact and Notice.
a. All contact and direction relating to this contract shall be with Johan E. Kalala-
Kasanda and reports and other work performed under this contract shall be forwarded to the
Commission Secretary at the address set out below.
b. Notice to either party shall be made in writing and delivered by first class mail,
postage prepaid, by personal delivery or facsimile copy at the following address:
TRS Administrator Commission
Kathleen Toohill Idaho Public Utilities Commission
2900 N Torreys Peak Dr. PO Box 83720
Superior CO 80027 Boise ID 83720-0074
4.9 Waiver. The failure of the Commission to enforce any provision of this contract
shall not constitute a waiver by the Commission of that or any other provision.
4.10 Governing Law. Both parties agree that this contract shall be governed by and
construed in accordance with the laws of the state of Idaho. Parties hereby consent to the
jurisdiction of the courts of Ada County in the State of Idaho in the event of any dispute with
respect to this contract.
4.11 Entire Agreement. The contract constitutes the entire agreement between the

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parties. This contract supersedes all prior agreements or understandings between the Administrator
and the Commission.
4.12 Execution in Counterparts. This contract may be executed in counterparts, each
of which shall be deemed an original and all of which together shall be considered one and the
same contract.
4.13 Mediation. Should any dispute arise between the parties to this contract, it is
agreed that the dispute will be submitted to a mediator, agreed to and compensated equally by both
parties, prior to commencement of any litigation. Mediation will be conducted in Boise, Idaho.
Both parties agree to exercise their best efforts in good faith to resolve all disputes through
mediation.
4.14 Fiscal Necessity and Non-Appropriation. The Legislature of the State of Idaho
is under no legal obligation to make appropriations to fulfill this contract. This contract shall in no
way or manner be construed so as to bind or obligate the State of Idaho beyond the term of any
particular appropriation of funds by the State's Legislature as may exist from time to time. The
State reserves the right to terminate this contract in whole or in part (or any order placed under it)
if, in its sole judgment, the Legislature of the State of Idaho fails, neglects, or refuses to appropriate
sufficient funds as may be required to continue such payments, or requires any return or "give
back" of funds required to continue payments, or if the Executive Branch mandates any cuts or
holdbacks in spending, or if funds are not budgeted or otherwise available, or if the State
discontinues or makes a material alteration of the program under which funds were provided. The
State shall not be required to transfer funds between accounts in the event funds are reduced or
unavailable. All affected future rights and liabilities of the parties shall thereupon cease within ten
(10) calendar days after notice to the Contractor. Further, in the event of non-appropriation, the
State shall not be liable for any penalty, expense, or liability, or for general, special, incidental,
consequential or other damages resulting therefrom.
4.15 Severability. The parties agree that if any term or provision of this contract is
declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity
of the remaining terms and provisions shall be construed and enforced as if the contract did not
contain the particular term or provision held to be invalid. The parties, by the signature below of
their authorized representatives, hereby acknowledge that they have read this contract, understand
it, and agree to be bound by its terms and conditions.

DECISION MEMORANDUM 9

The parties by the signature below of their authorized representatives, hereby
acknowledge that they have read this Contract, understand it, and agree to be bound by its terms
and conditions.

DATED at Boise, Idaho, this day of October 2023.
IDAHO PUBLIC UTILITIES COMMISSION
By:

ERIC ANDERSON, PRESIDENT

TRS ADMINISTRATOR
By:

_________________________________________
Kathleen Toohill
Reviewed and Approved:
Maria Barratt-Riley: ________________

DECISION MEMORANDUM 10

Pursuant to Paragraph 5.5 (Worker’s Compensation) of the contract, I certify that: I am a
sole proprietor contracting with the Idaho Public Utilities Commission and I am therefore exempt
from provisions of the worker’s compensation law. See Idaho Code § 72-212.

_______________________________
KATHLEEN TOOHILL