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Spokane, Washington  Est. May 19, 1883

Judge rules for University of Idaho in open records case involving University of Phoenix deal

The University of Idaho is shown in this undated photo.   (Courtesy of University of Idaho)

Idaho Board of Education members did not violate the state’s Open Meetings Law when they conducted three secret meetings last year to discuss the potential purchase of the University of Phoenix, a judge has ruled.

Fourth District Judge Jason Scott issued a ruling Tuesday that followed a civil trial last week pitting the governor-appointed school officials, who get legal advice from a deputy attorney general, against Idaho Attorney General Raul Labrador, who sued the board for essentially following his own subordinate’s advice.

Labrador’s suit sought to void the Board of Education’s May 18 decision to purchase the University of Phoenix on the premise that it had illegally discussed the $685 million deal during private meetings.

“This case doesn’t involve examining the proposed acquisition’s wisdom or merits,” Scott wrote in his decision. “The Court’s only call is to determine whether Attorney General Labrador proved his theory that the Board of Regents violated Idaho’s Open Meetings Law. For the reasons that follow, the Court determines that he did not.”

Board members testified last week they relied on legal advice provided by Deputy Attorney General Jenifer Marcus, who for years has advised the board about when it could meet in secret in what’s called executive session.

Idaho President C. Scott Green testified that he learned in late January 2023 from someone at Wells Fargo Bank that the University of Phoenix, a for-profit institution that offers mostly online degrees, was looking for a buyer.

In 2019, the owners of University of Phoenix agreed to pay $191 million to the U.S. Federal Trade Commission for “deceptive advertisements” to lure students to the school based on relationships with large employers.

After Green learned about the opportunity, contact was made with Tyton Partners, an investment bank serving as the broker for the University of Phoenix.

Tyton Partners, according to court records, informed Green and Idaho that it would be facing competition from other public institutions seeking the same purchase.

Based on that information, Marcus, the deputy attorney general, suggested that it would be appropriate for the Board of Education to meet in secret, based on an exemption to the open meetings law that allows a board to meet to discuss deals where competition exists.

The board then met in secret on March 22, April 25 and May 15 before a public meeting on May 18 where it unanimously voted to move forward with the purchase.

Attorneys representing Labrador, however, argued that the board should have known that the competition ended on April 24. That’s when the board of trustees for the University of Arkansas voted 5-4 to not pursue purchasing the University of Phoenix.

Green, who also signed a nondisclosure agreement with the University of Phoenix that he said prevented him and others from discussing the purchase, testified that he believed Arkansas was still a potential competitor and communicated his belief to board members.

“Because the Board of Regents reasonably believed at the time of the May 15 executive session that it was in competition with the governing board of one or more public agencies in other states to acquire the University of Phoenix,” the secret meetings were permitted, Scott wrote.

“Consequently, Attorney General Labrador hasn’t shown grounds for declaring null and void the approval given by the Board of Regents in open session on May 18 for the University of Idaho to acquire the University of Phoenix.”