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Dave Roepke and Sam Benshoof, Forum staff writers, Published May 18 2013

Forum exclusive: North Dakota higher ed board torn over Shirvani criticisms

FARGO – The day after she was grilled at a legislative committee hearing about perceived efforts to discredit North Dakota’s higher education chancellor, a member of the board overseeing the system sent an email critical of how her board and staff responded.

Kari Reichert wrote that while North Dakota University System officials put out a statement in support of Chancellor Hamid Shirvani the very day she and two other board members were being grilled by legislators, her trio received no similar support.

It caused her to question why fellow board members and staff would not also publicly support her, board Vice President Kirsten Diederich or board staff adviser Janice Hoffarth, all three questioned by Rep. Bob Skarphol and his House committee.

“This lack of response may lend the appearance that this board prioritizes the reputation of the chancellor above that of the board itself and its members, or worse, that the chancellor, and not the board, is running the show,” Reichert wrote.

That email was among hundreds of pages of documents recently released to The Forum after North Dakota Attorney General Wayne Stenehjem ruled the board met illegally three times this year and has committed “pervasive” violations of open meeting laws in serial emails among a quorum of board members.

As a remedy, Stenehjem ordered the board to turn over the documents to The Forum because the news agency originally requested his office look into the alleged violations.

The documents show there was significant dissent among board members in recent months about how to respond to issues raised about the leadership of Shirvani, who is now subject to a pending performance evaluation the board approved at a meeting earlier this month.

‘Line in the sand’

Reichert also said in an email the day of the House hearing that she believed the allegations of wrongdoing “drew a line in the sand” that identified her, Hoffarth and Diederich as Shirvani opponents.

She asked in the April 6 email why fellow board members Sydney Hull and Don Morton weren’t also called to appear at the hearing, given they too had been contacted by a system employee who was critical of how Shirvani presented some data to lawmakers.

The employee, Linda Baeza Porter, claimed Shirvani purposely compared data from the University of North Dakota and North Dakota State University to larger schools in an attempt to make the presidents of those schools look bad. Shirvani denied that and said he was not trying to mislead.

Rep. Skarphol argued at the hearing that board members should have reported the allegations before Porter publicized them.

Less than two hours after the Reichert email April 6, Morton wrote Skarphol to let him know he’d also been in contact with Porter. He said he spoke with her on the phone and then passed her supporting material on to Diederich for followup, as he was in New Orleans on a business trip.

Board President Duaine Espegard said in an email to the board that he wasn’t asked to come to the hearing and was also traveling at the time.

Though he wasn’t called to appear at the hearing, Hull, the student member of the board, took issue with how the board as a whole responded to it.

“I am disgusted at how bad this situation has become and I am surprised at how little outrage there is about three of our fellow board members being accused of this,” wrote Hull, who a month earlier at a March 7 board meeting had released a packet of emails criticizing Shirvani and the board for alleged open meetings violations and other misdeeds, such as forcing out employees who disagreed with the chancellor.

The documents Hull presented March 7 prompted The Forum’s request that the attorney general issue an opinion on whether two dinner meetings of the board were in violation of state law due to inadequate minutes and agendas.

In an initial opinion on April 18, Stenehjem ruled a dinner meeting Jan. 16 had violated open meetings law, but based on responses from the board, the March 6 dinner was merely social.

In a followup opinion on May 3, Stenehjem said that information Hoffarth volunteered sparked a new round of inquiries showing that the March 6 meeting did cover board business – and that a meeting with no public notice or minutes at all was held Feb. 26.

The new ruling also indicated that emails among board members amounted to “widespread” violations of state open meetings law.

Hoffarth told Stenehjem’s office she hadn’t been asked to relay her recollections of the meetings in response to the initial advisory opinion.

Legal concerns raised

Questions about whether the board has been following open meetings laws have come up numerous times this spring.

At all three of the meetings the attorney general later ruled were violations of state law, board members questioned in the meeting whether they were breaking open meetings law.

In the Jan. 16 meeting, Diederich recalls asking if the board was following state law and being assured it was, but in a statement provided to help re-create minutes of the meeting, she doesn't state who did the assuring. In the Feb. 26 meeting, Claire Holloway, the university system’s top attorney, advised board members open meetings laws didn't apply.

Holloway also disputed concerns passed on by the board’s faculty adviser, Douglas Munski, in an email to the board Feb. 25, that the board has a problem “vis-à-vis open meetings.”

“There has been no violation of open meeting laws,” she flatly stated in an email to board members the next day – hours before they illegally met in secret.

The day after the board’s March 7 meeting, board president Espegard emailed fellow members that he’d asked Holloway to investigate the claims Hull raised, including open meetings violations.

“If these allegations would have been brought to board leadership prior to addressing publicly, many of these issues may have been put to rest,” Espegard wrote.

Holloway said in her report, released a week after the allegations were raised by Hull, that she found the board’s dinner meetings didn’t violate state law, though she noted that the Feb. 26 meeting had possibly been a violation. She had advised board members at the time that a meeting of four members didn’t qualify as a quorum of the eight-person board because the two nonvoting advisers counted as members, bringing the board’s membership to 10.

Pat Seaworth, the university system’s former top attorney and author of a memo that accused Shirvani of instructing staff to disregard open meeting laws, said at the time that Holloway’s findings were “pre-ordained.”

But Seaworth – who claims he was pushed out of the job Holloway now holds for questioning Shirvani on open meetings laws – was not alone in questioning the findings.

A few days after the report was released, Hoffarth said in an email on March 20 she believed the internal probe “further deteriorated our credibility” and called for an outside investigation.

Espegard responded with a defense of the investigation, asking Hoffarth: “With all due respect, who do you suggest we use and what do you want to investigate?”

He later asked Hoffarth in an email: “What part do you not believe of her (Holloway’s) report?”

Diederich also defended the investigation by Holloway, saying in a March 20 email that she doubted the attorney would “jeopardize her law license over something like this.”

The same day, Reichert responded to the email from Hoffarth by defending Holloway’s integrity and saying it was merely an issue of perception, given that the board had “a trust and transparency issue.”

Nearly two weeks later, on April 2, Reichert had more pointed criticism of the investigation, writing in an email to Diederich that while she still didn’t question the integrity of the university’s chief lawyer, she wondered if it was proper to have her head the probe.

“She is the very person tasked to advise the board on open meetings laws; in other words, put bluntly, she is evaluating her own job performance,” Reichert wrote.

Clash over complaint

Reichert’s April 2 email was in response to news that the former president of Valley City State University, Ellen Chaffee, was filing a complaint with the Higher Learning Commission, which accredits the state’s 11 public universities and colleges.

In the complaint, Chaffee cited “grave” concerns that included allegations of open meetings violations, a lack of feedback sought from campuses in proposing new admissions standards and numerous departures of university system staff.

Reichert wrote in the email to Diederich that she wanted Holloway to advise the board on whether it was a good practice to handle complaints internally when they involved Shirvani’s management style and whether he created a hostile work environment. She wanted a third party to examine the claims.

Espegard responded to the complaints differently. In an email forwarded to the full board, he said the complaint was “more fear tactics,” raising issues that he considered to be settled.

But Reichert saw the complaint as “yet another signal that something is wrong and we have a responsibility as a board to look into it.”

“I understand it is your opinion, Duaine, that all controversy surrounding the chancellor and the board stems from a resistance to central governance,” she wrote. “I strongly disagree. This is not about what we are accomplishing, this is about how we are trying to accomplish it.”

A day later, university system spokeswoman Linda Donlin said in a written statement that the complaints “appear to be based on rumors and misinformation” about the board and Shirvani.

Reichert said in an email to the board that she was opposed to taking such a hard public line against the complaint, reiterating her concerns that an independent probe was needed, lest the “HLC beat us to the punch.” More importantly, she said, “waiting feels like I am not doing my job.”

Struggling over stances

It wasn’t unusual for the board to disagree on how to cast public statements that addressed criticism about Shirvani, based on emails and meeting minutes released as a result of the attorney general’s opinion.

On Feb. 5, state Sen. Tony Grindberg, a Fargo Republican, unveiled a proposal to add more than $800,000 to the higher education budget to allow the board to buy out the rest of Shirvani’s three-year contract that began July 1, 2012. The proposal didn’t make it into the eventual budget.

Less than two weeks later, on Feb. 18, Espegard emailed board members to propose a newspaper editorial countering an earlier editorial by Grindberg.

Diederich said in a response that she agreed with the notion, but it may “add fuel to an already burning fire” to accuse Grindberg and other lawmakers of not doing their “homework.”

Morton suggested in an email that the board should not feel obligated to react to what they saw as falsities.

“We do not have to constantly defend ourselves on the editorial page,” he said.

A few days later, following the North Dakota Student Association’s Feb. 23 vote of “no confidence” in Shirvani, Reichert argued for a statement expressing the board’s commitment to understanding the concerns of students and lawmakers.

“I don’t think that we can simply reiterate we support the chancellor,” wrote Reichert, who thought offering a full backing of Shirvani hadn’t worked well in the wake of the buyout proposal.

The next day, a statement released to media outlets by Donlin and signed by Espegard, Diederich and Grant Shaft, the most recent past president of the board, said that the board was “in full support of the policies adopted by the board and implemented by chancellor Shirvani” and praised his “leadership and knowledge.”

In his Feb. 25 email, board faculty advisor Munski challenged the notion that Shirvani had the board’s full support, since Hull had spoken in favor of the no-confidence vote by the student group.

Holloway, in her response the next day, said she considered the public statement accurate because Hull voted for all the policies the board passed since Shirvani was on the job.

Reichert again broached the issue at the March 6 dinner meeting, according to written recollection of members who were there. She was displeased that a recent letter to the editor by Espegard printed in many North Dakota newspapers – a piece that called Shirvani a “man of vision” – gave the impression the board had a consensus opinion about the increasingly embattled chancellor.

In Shaft’s recollections, he wrote, “It was pointed out during the discussion that the board has a policy where the president speaks for the board with the media.”

Two weeks later, it was clear the board wasn’t fully in support of Shirvani. In a vote on a resolution Shaft drafted in support of Shirvani, the board split 5-3 – with Reichert, Hull and Terry Hjelmstad voting against the resolution.

Concerns not new

About six weeks after that, at a meeting May 9, the board voted unanimously to conduct a performance evaluation of Shirvani, allowing the campus presidents, students, lawmakers, faculty and staff to make candid assessments of the chancellor directly to the board. The members are expected to review the responses by June 20.

Complaints about Shirvani raised at the May 9 meeting included communications problems and an exodus of university system staff. Of the 32 employees in the system, 12 had left their positions in the past year, Hoffarth said May 9 – though system officials said they only knew of 10 who had left.

Neither of those were novel complaints for at least some board members. Both had come up Feb. 26, according to the re-created minutes of the nonpublic meeting.

Reichert, Espegard, Shaft and Diederich gathered that night in Fargo for a three-hour meeting for which there was no notice posted or minutes taken. Board members met with four top university system staffers – but not Shirvani.

Diederich wrote in her recollection of the meeting that its purpose was to talk with four executive staff members – Holloway, Donlin, Randall Thursby, chief information officer, and John Haller, interim vice chancellor for academic and student affairs – about Shirvani’s performance and the morale in the system office.

Asked about the morale, the foursome said they had no issues and felt it was “like any other office,” Diederich wrote.

“I recall sharing my observation that only new staff members were invited to participate in the discussion, and that I would … give more validity to their perceptions of morale if we had representation from staff members who had not been hired by” Shirvani, Diederich wrote.

Thursby, who is retiring this summer, wasn’t hired by Shirvani.

The board members also asked about the level of communication with the campus presidents, Holloway recalls. In response to that, Donlin recalled a recent meeting with NDSU President Dean Bresciani in which university system officials were strategizing their media response to the flap about a grant for a sex-education program.

A grant given to a pair of NDSU researchers to start a voluntary sex-ed program for Fargo-area teens in cooperation with Planned Parenthood had been put on hold to make sure it was legal under state law.

An earlier open records request by The Forum showed that Bresciani had bristled at Shirvani stepping into the controversy without telling him. On Jan. 30, Shirvani announced NDUS staff had requested Attorney General Wayne Stenehjem research the law and issue a written opinion. The following day, Bresciani emailed the grant recipients to let them know he was disappointed to be caught by surprise by the request from Shirvani.

“I wish I could suggest that will change in the future, but sadly, we probably shouldn’t hold our breath on it,” he said.

Bresciani apparently returned the favor.

Donlin told board members that Bresciani didn’t mention in their meeting to plot their media response that he’d just talked to the media about the scandal.


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Readers can reach Forum news editor Dave Roepke at (701) 241-5542 and reporter Sam Benshoof at (701) 241-5535