Ryan Johnson, Published March 14 2013
University system attorney says probe showed no 'willful wrongdoing' by Shirvani
During a special State Board of Higher Education conference call to address the allegations, brought forward last week by student representative Sydney Hull, Holloway discussed her findings following an her internal investigation that she said was “standard operating procedure” for this type of situation.
But Pat Seaworth, the university system’s former attorney and author of a memo that accused Shirvani of instructing staff to disregard state open meeting laws, said Holloway’s findings were “pre-ordained.”
Seaworth said he wasn’t interviewed, despite being one of the main sources behind the allegations brought up by Hull, and said other employees with knowledge of the problems were not contacted.
“It was conducted with the intent of reaching the conclusion that it did,” he said. “The assertion that there was no willful wrongdoing on the part of Shirvani, that’s simply absurd and contrary to overwhelming evidence.”
Holloway said she read the materials provided by Hull and reviewed hundreds of pages of documents. She found that many of the allegations were already publicly addressed and resolved. Among them were complaints over a university system decision to use part of an information technology building on the University of North Dakota campus as office space for higher education leaders, including Shirvani.
Shirvani withdrew plans for the office space when the issue became controversial, and the Senate heard testimony in early February on the building.
“Most of the new allegations, especially those regarding open meeting laws, can be put to rest by simply reviewing documentation available on the state board’s website,” Holloway said.
Holloway’s report, released Thursday, states she found no legal violations with the board’s dinner meetings held the evening before regular meetings, and stated the allegations over improper procedures during committee meetings mostly weren’t backed up in her investigation.
She said the board will need to retroactively provide an agenda and minutes for an Oct. 29 executive committee meeting, when members discussed grandfathering Minot State University’s tuition rates and the budget for the next biennium.
Similar actions may need to be taken regarding a Feb. 26 meeting between some board members and Holloway that Shirvani did not attend. Holloway wrote that board members asked her at the gathering if it would be required to follow open meeting laws, and she advised them she didn’t believe it was subject to the requirements. In Thursday’s report, she said this omission will be addressed if deemed necessary after further review.
Holloway advised the board to use her inquiry as a chance to review its meeting practices and develop guidelines to ensure compliance in the future. She also urged all university system employees to raise concerns about potential violations of laws or board policies as soon as possible so they can be investigated.
“Retaliation for such reports is not tolerated,” she said.
Holloway also looked into other allegations, such as the chancellor ignoring advice from Seaworth on open meeting laws before the former general counsel resigned Nov. 5.
“These are not legal violations,” she wrote. “The chancellor, like any client, is allowed to weigh the legal advice provided by an attorney and either accept it or reject it. Had the rejection of legal advice led to violations of open meeting laws, however, corrections would have to be made.”
Holloway said an assistant attorney general previously provided open meeting guidance to Shirvani, and said there was no evidence he had violated laws.
Board member Kari Reichert said she was “a little disappointed” that board members weren’t approached earlier with potential violations of these laws, and said there should be better guidance and renewed efforts to follow all laws and board policies.
“The issue is not necessarily all these details,” she said. “It’s the question of trust.”
Board member Grant Shaft said he agreed, but the past president and member since 2007 said the board became “far more proactive” in complying with open meeting and open record laws since Shirvani took office July 1.
“From a historical perspective, I do think it’s unfair that Dr. Shirvani has been characterized as somebody who’s trying to circumvent the public notices when actually when he came on board we broadened our compliance and have been noticing everything,” Shaft said.
Other board members, including Hull, largely remained quiet during the 45-minute conference call, and the vote to accept Holloway’s report was unanimous.
After the call, board member Don Morton told reporters the special meeting was held this week – instead of in May as suggested last week by board President Duaine Espegard when Hull raised the allegations – to deal with the issues before the state House discusses the higher education budget next week.
Morton said higher education was often “beat up” by legislators in the late 1990s, when he was serving as assistant to the president of North Dakota State University, because there wasn’t a unified system in the state and each campus was lobbying for itself.
“This goal of a unified system has been around for a long time, and I think we’re making progress towards a more unified system,” he said. “Maybe that progress was too fast; maybe we have to slow down, I don’t know. But there’s certainly a learning moment for all of us.”
Board Vice President Kirsten Diederich said she hoped the investigation and new report could bring some “closure” to the allegations and allow the board and Shirvani to continue their work to move forward.
“But this report just came out today, 221 pages to read, and so I think we want to take the time to look at that before we say that we’re done,” she said. “If any other questions come up, we will absolutely check it out.”
Seaworth said Holloway’s inquiry “was not a real investigation.” He said the alleged violations he brought forward were all designed to enable Shirvani and the board to carry out their business without giving campus presidents, faculty, students or the general public a chance to offer input on the sweeping changes that are being made.
“It just flies in the face of common sense and best practice and good government to have an employee who reports to the subject of an investigation conduct the investigation,” he said.
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Readers can reach Forum reporter Ryan Johnson at (701) 241-5587