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Pat Seaworth. Bismarck, Published April 06 2013

Letters: ND higher ed board’s credibility is on the line

As the attorney to the North Dakota State Board of Higher Education until recently, I witnessed attempts by Chancellor Hamid Shirvani, in cooperation with board President Duaine Espegard, to circumvent state statutes governing meetings of government entities. These actions were in direct conflict with North Dakota values and a sharp contrast to how the board responded two years ago to similar misconduct by a university president.

In 2011, the board dismissed the Dickinson State University president based on evidence the president directed university employees to ignore statutory and board policy requirements governing enrollment reporting and degree requirements. This action followed investigations and reports by university system officials.

Recently, the board accepted a report of a rushed investigation by an employee who reports to the chancellor that glossed over or ignored allegations of chancellor misconduct. The board then voted 5-3 to support Shirvani, despite close similarities with the DSU situation. The investigator did not even speak to individuals who made the most serious allegations.

Staff objections

Last July, Shirvani directed employees to ignore open meetings laws and not post or distribute a required public notice and agenda in scheduling a dinner meeting for board members. When an employee pointed to statutory requirements Shirvani insisted on ignoring, Shirvani responded by saying, “I don’t care. Just do what I say.” Following my intervention and telephone report to the attorney general, notice of the July dinner meeting was posted.

In September, again in the face of staff objections, Shirvani directed employees not to list agenda topics or mention discussion of board business for another board dinner meeting. The failure to provide notice of plans to discuss board business created a false impression the dinner was only a social event. Also, having the dinner at Shirvani’s home reinforced this impression and discouraged public participation. Several private board dinners have followed at which discussion regarding important board business occurred without public notice of plans for those discussions, all in violation of state law, opinions of the attorney general and advice of the attorney general’s chief deputy given in July and conveyed to Shirvani.

No public notice

During this same time, at least two meetings of the board’s executive committee occurred without required public notice. On Sept. 5, 2012, Shirvani told an employee the executive committee met Sept. 4 – even though there was no public notice and there are no minutes of the meeting – and decided to fast track approval of a new plan revising admissions requirements in order to limit opportunities by institution presidents and others to “nitpick” the plan. An initial draft of a Sept. 26 board meeting agenda included board action adopting the new plan, but Shirvani instructed a secretary to remove the reference and substitute language that indicated only a report on the plan would be provided. The board approved the plan at the Sept. 26 meeting with no public notice of plans to do so, ignoring a request by the student member to postpone discussion to allow time for feedback from students and others.

Also, the board amended its strategic plan without prior notice or consultation with constituent groups, contrary to state law and board policy. Prior to the meeting, Shirvani ordered a secretary to not send the draft agenda to me so I would not have advance notice of these plans. When employees complained about being directed to facilitate violations of state law, Shirvani squelched an investigation by an employee assigned responsibility to investigate misconduct.

Board credibility

Espegard approved board meeting agendas knowing they did not comply with statutory requirements. Board members annually received a memorandum summarizing open meetings and records requirements.

The board’s failure to request an investigation by someone not subject to Shirvani’s control regarding not just open meetings violations but also other allegations stands in contrast to how the board responded to similar concerns involving DSU, and raises questions regarding the board’s credibility.

Recently, university system employees reported a Shirvani attempt to intimidate them into manipulating or selectively reporting data, again raising parallels with what happened at DSU. System office employees have been forced out or resigned, key positions are vacant, advertised position openings attract few or no qualified applicants, and Shirvani has surrounded himself with an inner circle of employees with no prior higher education experience.

It is apparent that new leadership is necessary in order that North Dakota continue to have one of the best-performing higher education systems in the nation. It is time for Espegard to resign and other board members to assert board authority and replace Shirvani with a chief executive with integrity and respect for the law and North Dakota values.

Seaworth was board of higher ed counsel and executive secretary 1993-2012. He previously served as assistant attorney general for North Dakota and Bismarck city attorney. He is a graduate of the University of North Dakota and Washington University School of Law, St. Louis.