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Kyle Potter, Published August 06 2013

ND AG says higher ed board met illegally to discuss Shirvani buyout

BISMARCK – Behind closed doors, State Board of Higher Education member Grant Shaft laid out the game plan for how to handle the vote that would decide embattled Chancellor Hamid Shirvani’s fate. The board would publicly weigh two options: one to keep Shirvani at his post, and the other to buy out his contract.

“If someone wants to say, ‘I move we scrap the continuation,’ then we can vote on that,” Shaft said, according to an audio recording of the hour-long private meeting on June 3. “Now you just have a separation agreement.

“Or vice versa,” he added.

Back in the public eye minutes later, the board shot down two proposals to keep Shirvani as chancellor and then unanimously voted to buy out the remainder of his contract for a total of nearly $1 million.

In an opinion released Tuesday, Attorney General Wayne Stenehjem said Shaft’s tactical conversation – plus a brief discussion of three different buyout packages – should have been held in public.

Citing a portion of the state’s open meeting laws that allows public entities to discuss negotiating strategy with an attorney in private, the board went into a 77-minute “executive session” before approving Shirvani’s buyout. Stenehjem said only the portions of the meeting that involved the attorney should have been held behind closed doors.

He ordered the board to turn recordings of the remainder of the meeting – nearly 30 minutes of audio – over to the Forum and other news organizations who requested an opinion on whether the executive session violated the state’s open meetings laws.

In a separate opinion, Stenehjem stated that a series of individual meetings between three board members and 10 North Dakota university presidents – held about a week after Shirvani’s ouster – weren’t subject to the state’s open meetings law. Had there been four board members participating – enough to establish a voting quorum – those meetings would have been considered public.

Board President Kirsten Diederich said in a statement that the board was happy to be cleared of one allegation of wrongdoing, but also disappointed with yet another open meetings violation.

In a May opinion that dinged the board for two improper meetings earlier in the year, Stenehjem wrote that the board’s violations of open meetings laws are “pervasive.” He required all board members to complete training to avoid further violations.

Diederich said the board is committed to improving its transparency.

“We were very sensitive to following open meetings requirements, thus we were very cautious on the front end and had several conversations with the Attorney General’s office before the (June 3) meeting,” Diederich said. “We thought we were following its guidance”

Inside the boardroom

The State Board of Higher Education spent the majority of its executive session consulting with an attorney, Sara McGrane, about which buyout proposal would put the school on the best legal footing. Stenehjem said the board was right to take that conversation private.

But among themselves, members briefly discussed three possible buyout packages for Shirvani:

E Paying out the remainder of the chancellor’s contract in full, regardless of whether he found another job afterward. This is the option the board approved, and the only one it discussed in public.

E Paying out the remainder of the chancellor’s contract in full until he found another job. If Shirvani’s new job paid him less, the board would cover the salary difference. Shaft said Shirvani and his attorneys would not accept this deal.

E Paying out the remainder of the chancellor’s contract in full, plus money for moving and “reputation damages” as well as a tenure position at the University of North Dakota or North Dakota State University. “That really wasn’t acceptable,” Shaft said.

The 28 minutes of recordings released Tuesday show that board members spent much of that time discussing the tactics of the looming vote and the difficulty of reaching an agreement that would keep Shirvani on as chancellor.

In order to continue, Shirvani asked for complete autonomy and a vote of confidence from the board. Board members briefly discussed implementing an evaluation process if Shirvani were to stay on the job.

Shaft said that if Shirvani was given a choice between staying on the job and taking a buyout, he would likely take the money.

“I have a very strong hunch, for what hunches are worth, that we are going to end up with a separation agreement,” Shaft said.

Readers can reach Forum reporter

Kyle Potter at (701) 241-5502