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Patrick Springer, Published June 01 2013

Lawyer: Executive session to discuss Shirvani violates open meetings laws

FARGO – The North Dakota State Board of Higher Education would violate open meetings laws if it goes into closed session to discuss whether to renegotiate or end the embattled chancellor’s contract, a lawyer who represents news organizations said Saturday.

The board will meet today and Monday in Medora for its annual retreat, which comes as the board is discussing an evaluation of Chancellor Hamid Shirvani’s performance.

Shirvani has been under fire for months, as students have passed resolutions of no confidence in his leadership and lawmakers debated providing money to buy out his contract.

In a revised agenda issued Saturday, the board added an item for today’s meeting to consider hiring an outside lawyer to provide legal advice concerning Shirvani’s contract.

The board’s agenda for Monday calls for an executive session, closed to the public, to discuss negotiation of Shirvani’s contract.

Jack McDonald, a lawyer for the North Dakota Newspaper Association, said the board could only go into executive session to discuss negotiating strategy or to provide negotiating instructions to its attorney – only when an open session would have an “adverse fiscal effect.”

“But the decision whether to hire or fire someone has to be made in a public meeting,” McDonald said. Similarly, he added, “The decision to go for a buyout has to be done in public.”

If it would be awkward to have that discussion in front of Shirvani, who could be present at the meeting, the board could simply ask him to leave the room, McDonald said.

Duaine Espegard, president of the higher education board, was not available for comment Saturday. A spokeswoman for the North Dakota University System said Monday’s executive session is allowed under the law.

“My understanding is they will be discussing negotiating strategy,” said Linda Donlin, communications director for the university system.

Shirvani, who started last July 1, has a contract for three years, expiring June 30, 2015.

Under board policy, chancellors come up for annual evaluation, including salary and whether to renew for the following year, Donlin said.

Board members also could decide not to renew, she said.

Because Shirvani already has a contract, McDonald said the law’s provision to allow an executive session does not apply.

“He’s already under contract,” he said. “They’re already paying him.”

Since the board already has a three-year commitment with Shirvani, McDonald added, “it is difficult to understand how these discussions would have an adverse fiscal impact on the board.”

Years ago, the board ran afoul of open meetings laws when members conducted a series of meetings, with only two members present, to discuss whether to fire a university president, McDonald said.

Ironically, the board’s Monday meeting will include a training session on open meetings laws – a refresher prompted by the board’s recent violations of open meetings laws.

Those violations involved dinner meetings and email exchanges earlier this year that effectively were illegal closed meetings, according to Attorney General Wayne Stenehjem.

If Monday’s executive session is really to discuss whether to hire or fire the chancellor, “that really bothers me,” McDonald said. “They’ve had so many warnings, it’s really egregious.”


Readers can reach Forum reporter Patrick Springer at (701) 241-5522