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Ryan Johnson, Published June 13 2013

Higher ed board meetings could be illegal, lawyer says

BISMARCK – The State Board of Higher Education could again be in hot water for potentially violating the state’s open meeting laws, this time for meetings between three board members and the 11 college and university presidents on Wednesday.

The gatherings in Bismarck were attended by board President Duaine Espegard, President-elect Kirsten Diederich and Vice President-elect Terry Hjelmstad, Espegard said. He said they didn’t qualify as a quorum of the eight voting board members.

Espegard said the three met with each campus president individually throughout the day for a “listening session.” It was a chance to get their thoughts on the future of the North Dakota University System following the board’s unanimous vote June 3 to buy out embattled Chancellor Hamid Shirvani’s contract, he said.

“We were just listening to the presidents,” Espegard said. “It’s not an official meeting. Nobody authorized it; nobody set up a committee or anything like that.”

But Jack McDonald, a lawyer for the North Dakota Newspaper Association, questioned the legality of the meetings after a story on Thursday in the Bis-marck Tribune quoted NDUS spokeswoman Linda Donlin as saying they were “to discuss the road ahead” for the system.

In a Thursday email to several reporters, McDonald wrote that the discussions were seemingly “so blatantly illegal it’s hard to know where to begin.” He said even though there wasn’t a quorum, the members in attendance appeared to be authorized to act on behalf of the board – meaning they were working as a committee and needed to make their meeting public.

“Obviously, the road ahead has been discussed and determined by the board, and now it is being relayed to the college presidents,” he wrote. “However, apparently the public is not yet to know what the ‘road ahead’ is.”

The Forum has asked Attorney General Wayne Stenehjem to issue an advisory opinion on whether the meeting was legal. In previous rulings, he has found the board had “pervasive” noncompliance with the state’s open meeting laws and held at least three illegal meetings since January.

Donlin told The Forum that the idea for the meetings came up at the board’s annual retreat in Medora earlier this month. An outside consultant hired to lead board members through a training session suggested they meet with campus leaders to get ideas on what they needed to do better, she said.

“It wasn’t a board formal decision or anything, but general consensus that this would be a great idea,” she said, adding that it’s a good time for the board to visit these issues.

Minot State University President David Fuller said he emailed the other presidents, as well as Espegard and Diederich, following the vote to buy out Shirvani’s contract and suggested they get together to talk about next steps.

The presidents were already scheduled to meet in Bismarck with Shirvani on Wednesday. After the buyout vote, that meeting was canceled, but Fuller said it still seemed worthwhile for the presidents to get together.

“I found the discussions very positive and constructive,” Fuller said. “As I mentioned in my note to the presidents, I think that there’s a time for healing and let’s get together and restore a good system that we all believe in and campuses we believe in.”

North Dakota State University spokeswoman Laura McDaniel told The Forum that President Dean Bresciani agreed with Espegard’s characterization of the gathering as a “listening session,” not an official board meeting.

Espegard said the board has nothing to hide, and the full board will hear highlights of these discussions at its meeting on Thursday in Bottineau.

“In my wildest dreams I can’t see how this could possibly be a violation of anything,” he said. “It’s good business practice. Wouldn’t you want to talk to your presidents at a time like this to say, ‘Give me your input?’ ”


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