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Ryan Johnson, Published May 03 2013

ND AG: Higher ed board's violations of open meeting law 'pervasive'

BISMARCK – The state Board of Higher Education’s violations of open meeting laws are “pervasive,” and board members must complete training to avoid future problems with the law, says Attorney General Wayne Stenehjem.

His written opinion released Friday found two more board meetings that violated state laws in addition to one cited in an April 18 opinion, and several other instances that broke open meeting laws when a quorum of members discussed official business through email.

“There is evidence that some board members have a good faith desire to comply with the open meetings law but are unaware of the breadth of the statutes,” Stenehjem wrote.

“There is sufficient reason to conclude that for some members failure to comply may be intentional,” he wrote. “In either case, it is obvious there is a need for thorough instruction on the open meeting laws.”

Board President Duaine Espegard responded to the news with a written statement.

“We have read the opinion, and will, of course, comply with the remedy set forth by the attorney general,” he wrote.

The Forum requested on March 9 that Stenehjem look into possible violations during the board’s Jan. 16 and March 6 dinner events. He responded April 18, releasing an opinion finding that the Jan. 16 dinner meeting at Chancellor Hamid Shirvani’s home in Bismarck broke the law because of inadequate public notice and minutes.

But he ruled a March 6 dinner social at a Bis-marck restaurant was not subject to open meeting laws. Stenehjem based that on a March 25 letter from University System General Counsel Claire Holloway stating the dinner was a social function that didn’t include discussion of official business.

Stenehjem reversed that April 18 finding about the March 6 dinner social on Friday. He said he looked into the issue further when Janice Hoffarth, the board’s non-voting staff adviser, called him April 19 to say she didn’t agree that the dinner meeting was purely social.

He launched another investigation April 23 by sending letters to board members asking them to explain what was actually discussed.

He contacted three more board members besides Hoffarth, “and it became clear that the initial response from the Board was neither accurate nor forthright. Moreover, other than Ms. Hoffarth, no other Board member took any action to correct the inaccuracy.”

He wrote that the results of that subsequent investigation were clear.

“The response received by this office about what actually occurred during the March 6, 2013, dinner social varied in particulars but not in substance,” he wrote Friday. “Although several members say they believed the conversations were social in nature, the topics of discussion they described were, in fact, substantive board business.”

Stenehjem wrote that most board members recall discussing Espegard’s letter to the editor published in several newspapers expressing the board’s support for embattled Chancellor Shirvani. Some said the conversation got “quite heated,” with questions about who represented the board and who could speak to the media.

Others said the dinner meeting included talk of an open records request for student representative Sydney Hull’s emails, text messages and phone records; Hull’s accusations against Shirvani; and the controversy facing planned changes to a new information technology building on the University of North Dakota campus. Hull didn’t attend the dinner.

Intentional violations?

Hull told The Forum on Friday that the dinner conversation about him was prompted by comments he made on Scott Hennen’s radio show. Hull said he was asked about rumors of low morale among the university system’s central office employees. Hull said he responded that he received emails from some employees who were concerned about the situation, but he refused to release their names to Espegard, who also was a guest on the radio show that day.

He said he was eventually told by Holloway that a verbal request by Espegard was the same as a formal written open records request, meaning he had to hand over the information.

The day after the dinner meeting, at the board’s regular meeting on March 7, Hull raised serious allegations against Shirvani, including accusations of violating or disregarding open meeting laws. The allegations were investigated by Holloway, who released a report March 14 finding “no substantive evidence of willful wrongdoing” by Shirvani or the board.

“It’s just unfortunate that we were supposed to have a thorough investigation into my concerns and that investigation turned out to be wrong,” Hull said Friday. “I feel like I wasn’t taken seriously back in March. I thought I was right, and turns out, I was.”

In his opinion Friday, Stenehjem wrote that some board members blamed the open meeting violations on “confusion” over what exactly is considered public business – despite both the board’s former and current attorneys giving them an explanation of the law.

“I will not tolerate the circumvention of the open meetings law due to actual or feigned ignorance of the law,” Stenehjem wrote, adding it’s the responsibility of members of a governing body to know the requirements.

Stenehjem wrote that Hoffarth and Board Vice President Kirsten Diederich did express concern during the dinner that the conversation was becoming public business, but “such concerns apparently were ignored.”

He concluded that the March 6 dinner was subject to open meeting laws, and said the board failed to provide adequate notice and minutes.

Additionally, he found that the board held an illegal meeting in Fargo on the evening of Feb. 26. He said a quorum of board members participated, either in person or over the phone, to discuss concerns regarding communication with campus presidents, the way the “Pathways to Student Success” plan was approved and the environment at the university system office.

Stenehjem ruled this gathering was a meeting because public business was discussed, and the board failed to provide notice and minutes.

He said Shirvani and board members also provided documents revealing other “widespread open meeting violations” because of how the board and chancellor use email to communicate. If a quorum of board members discusses public business, whether in person, over the phone or through emails, they must follow open meeting laws, Stenehjem said.

“This practice of using emails to circumvent public discussion on public business violates the open meeting laws and must cease immediately,” he wrote. “Although the number of violations is difficult to determine, it is my opinion that the series of email exchanges among a quorum of SBHE members were intended to avoid the open meetings law.”

Stenehjem’s opinion requires the board to address the violations within seven days by creating detailed minutes for the March 6 and Feb. 26 meetings.

He also ordered the board to work with his office to set up a comprehensive training seminar on open meeting laws that all members must attend within two months.

Additionally, Stenehjem wrote the board must “scour” its emails to find all discussions among a quorum of members to be retained as public record.

Hull told The Forum that Stenehjem’s findings are “clearly not good news” for a higher education system that’s been plagued by controversy for months.

Still, he said board members have stopped discussing official business through email since Holloway advised them of a potential problem a few weeks ago, and he’s hopeful the issues can be fully discussed at the next regular board meeting Thursday in Grand Forks.

“I think it will stop, and I genuinely hope it does, because it’s not right to be breaking the law, even if you’re trying to get business done,” Hull said.


Readers can reach Forum reporter Ryan Johnson at (701) 241-5587