Attorney general: SBHE open meeting violations ‘pervasive’

State Attorney General Wayne Stenehjem said Friday that the embattled State Board of Higher Education’s violations of the state’s open meetings laws have been “pervasive.”

Stenehjem ruled on April 18 that the board had violated open meetings laws when they met Jan. 16 at the home of Chancellor Hamid Shirvani in Bismarck. The board failed to post the location of the special meeting at Shirvani’s house or at the board office and failed to give specifics about what was discussed at the meeting in the minutes released following the meeting.

In the same April 18 opinion, Stenehjem wrote that the board had not violated the open meetings law at a March 6 dinner attended by a quorum of the board because board members told him they had not discussed public business at that meeting. However, according to the opinion issued Friday, Stenehjem said further investigation determined that the board did, in fact, violate the open meetings law in March and substantive public business was discussed during that meeting.

According to Stenhjem, Janice Hoffarth, the board’s staff adviser, contacted him after the April 18 opinion was issued and disagreed that the March meeting was a purely social occasion. According to the opinion, Hoffarth, who is employed by the state university system at the University of North Dakota, was concerned that contacting Stenehjem could affect her job, but she put her duty as a board member ahead of any concern about her job.

Following his conversation with Hoffarth, Stenehjem contacted three board members about the nature of the March 6 dinner social “and it became clear that the initial response from the Board was neither accurate nor forthright,” he wrote. “Moreover, other than Ms. Hoffarth, no other Board member took any action to correct the inaccuracy.”

Stenehjem then required board members and Shirvani, who was also present at the dinner, to individually answer a series of questions about what was discussed at the meeting. Stenehjem advised them that anyone making a false written statement in a governmental matter would be guilty of a class A misdemeanor. Stenehjem said the responses made it clear that substantive board business was, in fact, discussed at the March 6 dinner social though “some members of the SBHE appear to believe that by merely labeling the meeting as a ‘social dinner’ in the agenda, they were relieved from any obligation to adhere to the requirements of the open meetings law.”

“Although each SBHE member has … a slightly different recollection of the March 6, 2013, dinner meeting, most SBHE members recall discussing a recent letter to the editor from SBHE president Duaine Espegard that was published in several newspapers,” Stenehjem wrote. “The letter discussed various SBHE issues and the SBHE’s position on supporting Chancellor Shirvani. Some SBHE members recall the conversation getting quite heated and questions were raised about who represents and speaks to the media on the Board’s behalf. Others recall conversations involving an open records request for SBHE member Sydney Hull’s e-mails, text messages, and/or phone records; Mr. Hull’s accusations against Chancellor Shirvani; and, the controversy surrounding construction of the information technology building at the University of North Dakota. One member summed up the conversation saying ‘no formal agenda but there was a discussion on some of the agenda items of the meeting the next day.’ “

This, Stenehjem wrote, was a clear violation of the state’s open meetings law. Though some board members said they were confused about what discussions are public business, Stenehjem wrote that the board’s lawyer has frequently explained the open meetings law and that it applies to discussions that take place in informal as well as formal gatherings and at all steps of a decision-making process, so long as a quorum is present.

“I will not tolerate the circumvention of the open meetings law due to actual or feigned ignorance of the law,” wrote Stenehjem. “In the context of the open records law, I have explained that every state official and the employees of any public entity should know what records are subject to the open records law.”

Also in the opinion issued Friday, Stenehjem wrote that there have been several instances where a quorum of the state board of higher education has discussed public business via e-mail or by telephone, also a violation of the state’s open meetings law.

“The e-mails provided to this office illustrate that the SBHE frequently provide opinions, gather information, engage in substantive discussions, and attempt to build support and consensus for certain positions with each other,” wrote Stenehjem. “Oftentimes such e-mail exchanges were prompted by Chancellor Shirvani, who, as the chief executive officer of the Board and a public employee is under the same obligation to adhere to the open meetings law. This practice of using e-mails to circumvent public discussion on public business violates the open meetings laws and must cease immediately. Although the number of violations is difficult to determine, it is my opinion that the series of e-mail exchanges among a quorum of SBHE members were intended to avoid the open meetings law, and were “meetings” required to be open to the public and preceded by public notice.”

Stenehjem also ruled that the board also violated the open meetings law on Feb. 26 when a quorum of board members met with university system employees in Fargo.

As a remedy for the open meetings violations, Stenehjem is ordering all board members to attend a training seminar in conjunction with his office within the next two months. Within seven days, they must also create minutes for the March 6 and Feb. 26 meetings. The minutes for each meeting must include a list of all people present and the written recollections of all those who were present. The minutes and recollections must be provided free of charge to any member of the public who asks for them.

Espegard, contacted on Friday, said the board will comply with the remedy proposed by the Attorney General.

Both the state board of higher education and Chancellor Shirvani have come under criticism in recent months. Several groups, including the North Dakota Student Association as well as Minot State University’s faculty senate and student association, have approved votes of no confidence in Shirvani, whose management style has been criticized. Shirvani has said he is doing as asked and is attempting to improve the state’s university system, including boosting low graduation rates. The Board of Higher Education has expressed its support for Shirvani, who began work last July. North Dakota voters will vote in November 2014 on whether to replace the board of higher education with a three-member, full-time commission.