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Editorial – Legality of President’s Contract at North Idaho College

When I was hired by North Idaho College (“NIC”) to be its attorney in December 2022 I heard rumors of an open meeting law violation supposedly occurring President Swayne’s date of hire on June 22, 2022.

To protect President Swayne during my investigation, I recommended the NIC Board of Trustees put Dr. Swayne on administrative leave. This would protect him because he could then testify that he was not at the College and thus could not impede it.

Then, as NIC’s attorney I requested documents from the NIC computer servers and was told by a co-administrator of College operations that my procurement of these documents may be illegal. He prevented the IT department from providing me the documents.

Then, Dr. Swayne sued NIC. I thought that putting Dr. Swayne on administrative leave would result in him going to Bermuda or some other beautiful location until my Report was issued. However, the lawsuit helped the investigation, because I was able to file and serve 15 subpoenas on various people who were around when the hiring decision was made. Long story short, most decided to obey the law. This editorial discusses the Report I issued from that investigation.

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The full Report is available here: https://www.nic.edu/board/. The Report itself is 37 pages, and the other approximately 140 pages are exhibits. After the Report reviews the investigative process and analyzes available facts, it discusses four other topics of interest to Idaho voters before the conclusions and recommendations.

Analysis of available facts led me to the conclusion that an open meetings law violation occurred. The Idaho open meetings law begins at Idaho Code section 74-201. That law requires decisions about public policy be made in public in an open meeting properly noticed and called where a quorum is present.

In this case, press releases about the four candidates were traded back and forth between those candidates and NIC during the morning of June 22, 2022, but sometime in the early afternoon the other candidates vanished and Dr. Swayne was the last man standing. The emails show that even before the meeting began and a motion was made regarding the presidential hiring at the meeting that night that Dr. Swayne’s press release, his headshot, and background information was firmed up and emailed internally for instant release upon the vote of the Board of Trustees. Based on the available evidence, I concluded the decision to hire Dr. Swayne was made prior to the Board of Trustees meeting on June 22, 2022.

This brings us to the first of our four sections. This is the timing for Board recognition of an open meetings law violation. On March 3, 2023, in Dr. Swayne’s lawsuit, Judge Meyer of the First District Court issued a Memorandum Decision and Order granting Dr. Swayne’s Motion for Preliminary Injunction. That Order forced the NIC Board of Trustees to reinstate him as President for the duration of the lawsuit. The Court indicated Idaho Code subsection 74-208 (6) applied and that the time to recognize an open meeting law violation had passed, as opposed to applying subsection 74-208 (7). The Report disagrees and states why.

In the Court’s ruling on May 3, 2023, without mention of the Report, which was not in evidence before the Court, it changed tracks to apply subsection 74-208 (7), with different reasoning than in March. The Court reached the same conclusion against the elected Trustees.

The second portion of the Report important for Idaho voters is the illegality of a super-majority requirement in the President’s contract. The NIC Board of Trustees has five members. Idaho Code section 33-2106 (7) states, “Three (3) members of the board shall constitute a quorum for the transaction of official business.” The Idaho State Supreme Court previously ruled in several cases that requiring a 4-1 vote in such a contract violated Idaho Code, because it unlawfully constrained a five-member Board. See the Report for that discussion.

The third section of the Report is that President Swayne’s NIC contract did not mention his officer position as secretary of the North Idaho College Foundation, Inc. Dr. Swayne was hired as an officer of the College with fiduciary duties of loyalty and care to put NIC first. With an officer position in each organization, Dr. Swayne had fiduciary duties of loyalty and care to both organizations: a public two-year Community College, and a private nonprofit corporation. The Board of Trustees could not consider that Dr. Swayne’s fiduciary duties were being split between a public and a private organization. The Report discusses this further.

The fourth area of interest for Idaho voters includes a brief discussion on Idaho federalism. The question is who decides the fate of NIC, its Board or a Court? On March 3, 2023, the First District Court issued an injunction mandating reinstatement of Dr. Swayne until the end of the lawsuit. The injunction stopped the Board from exercising its statutory power to hire and fire the President, even if he was found stalking young women on campus, even if he was found being fiscally imprudent, or even if he was found retaliating against employees in violation of Idaho Code section 6-2104, the Idaho whistleblower statute.

As was stated in the 1963 Gowey case found beginning on page 574 of volume 85 of the Idaho Reports, “We do not think it was ever intended by the legislature that municipal authorities should go into a District Court every time they want to discharge in appointive officer or employee.” The NIC Board must now ask the Judge for permission to run the College.

The core of the question has to do with oath takers. NIC Board of Trustees all took the same oath as Judge Meyer to uphold the Idaho Constitution and the federal Constitution. But, the Board and the District Court have different purposes, processes, and functions in society. The Report discusses the District Court function as being disjunctive, but conversely the NIC Board of Trustees as oath takers function as an aggregative body exercising judgment as fiduciary trustees on behalf of NIC and its best interests.

Additionally, a fundamental difference is time. A civil Court case usually has two parties, Smith v. Jones. In short, no one’s time is wasted by a long drawn out lawsuit except the time of the two parties. An 18-month civil case with a 2-year appeal time is no way to run a two-year Community College.

The NIC Board of Trustees has to act quickly. It holds a regular meeting once a month and can hold a special meeting on 24-hours notice. In short, a Board of Trustees does not have time to wait for the machinations of a Court system – and neither do the citizens and voters of North Idaho. The Board of Trustees has to ask permission of the District Court to timely fulfill the Board’s statutory duties. In effect, the Court ousted the Board of Trustees.

My Report recommended the NIC Board of Trustees consider the facts of the Report, and then provided a decision tree. The reader is advised to review the Report to decide for themselves. In my opinion, the exhibits support the conclusions, and it is a carefully written document. Your NIC Board deserves your consideration.

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