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NIC releases attorney’s investigation of president’s contract

Art Macomber, NIC attorney (in center) attends a North Idaho College Board of Trustee meeting at the College, Wednesday, March 22, 2023.  (COLIN MULVANY/THE SPOKESMAN-REVI)

An investigation by North Idaho College’s attorney alleges that the college’s president was hired after an agreement was made among three trustees outside of a public meeting in violation of Idaho public meeting law.

The board voted unanimously Monday night to release the 36-page report, which includes an additional 137 pages of appendixes and supporting documents.

The presidential crisis at NIC has exacerbated its accreditation crisis. The college’s accrediting body issued a sanction against NIC in February, partly due to uncertainty about who the chief executive officer is. A team of five peer evaluators for the Northwest Commission on Colleges and Universities will visit the campus Wednesday and Thursday to verify information NIC submitted last month and to assess the college’s compliance with accreditation requirements.

The investigation by attorney Art Macomber examines the circumstances under which Nick Swayne was hired as president on June 22, 2022, and the terms of his contract. Swayne was then placed on leave but reinstated after he sued.

Swayne was hired in a 3-2 vote, with Idaho Board of Education-appointed trustees David Wold, John Goedde and Pete Broschet voting in favor. Current trustees Todd Banducci and Greg McKenzie voted against hiring him.

The report argues that since there was no executive session beforehand, the trustees did not have a chance to discuss the four candidates.

However, the report omits that Banducci and McKenzie voted against entering executive session at that meeting. Idaho law requires a two-thirds supermajority for executive session.

Ultimately, Macomber recommended in his report that the board cure the alleged open meeting violation by making Swayne’s contract null and void. The board did so in a 3-2 vote Monday night, undoing the June 2022 action to hire Swayne, but keeping him as acting president.

Trustees Brad Corkill and Tarie Zimmerman voted against it.

“Art Macomber prepared a report at college expense that sounds like a road map for a coup to get rid of the college president,” said Corkill, whom the board considered censuring for sharing the report before it was released.

The three appointed trustees – Broschet, Goedde and Wold – were replaced in the November 2022 election. With the election of Kootenai County Republican Central Committee-backed Mike Waggoner, Banducci and McKenzie regained control of the board majority.

Shortly after hiring Macomber in December, the board followed his recommendation to place Swayne on administrative leave in order to investigate his contract.

Swayne sued NIC in response, arguing there was no provision in his contract to place him on leave without cause.

He was reinstated last month following a preliminary injunction from Kootenai County District Court.

“To the court, it appears that the investigation is a sham and pretext for Dr. Swayne’s removal from his position as President,” Judge Cynthia Meyer wrote in her order to reinstate Swayne for the remainder of the lawsuit.

Macomber’s report said unhiring Swayne should erase the board’s legal troubles.

“The Board should recognize the Swayne contract is null and void,” the report’s conclusion states. “As such, the Swayne lawsuit may and likely should fail for lack of a valid contract to interpret.”

However, Meyer noted in her order that “any action the Board may have taken due to its prior alleged violations of Idaho’s Open Meeting Laws are now time barred.”

According to Idaho law she cited, a suit had to have been filed before the end of January.

Macomber’s report argues that the time limit does not apply in this case if the board “wants to self-recognize its own violation.”

Swayne’s attorney made a contempt filing Tuesday – a possible reaction to the report anticipated.

“The legal advice related to this possibility is outside the scope of this report and can be discussed later,” the report said.

Documents from another lawsuit brought by former Coeur d’Alene city attorney Mike Gridley allege that Macomber and the board’s majority faction trustees violated open meetings in email exchanges in November and December, prior to hiring Macomber.

“It is readily evident that the decision to hire Mr. Macomber was made by secret ballot between Defendant McKenzie, Defendant Waggoner, and Defendant Banducci ahead of the December 5, 2022 NIC Board meeting,” Gridley’s amended complaint said after the emails were obtained through discovery.

Zimmerman had planned to raise the topic of curing these email-related alleged open meeting violations Monday night before she removed the item from the agenda.

The board’s regular monthly meeting is Wednesday night.

James Hanlon's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.