Attorney General: Higher Ed Board Violated Open Meetings Law Again

Earlier today I noted that the North Dakota University System has violated open meetings/records laws no fewer than 17 times since 2010.

Make this number 18.

Currently the university system is trying to fire their chief compliance officer Kirsten Franzen for, in part, allegedly tipping me off to a State Board of Higher Education meeting the public was asked to leave (she didn’t). The SBHE has also claimed that sending the audience out of the meeting, during which they made some very interesting comments, wasn’t a violation of open meeting laws.

Attorney General Wayne Stenehjem disagreed pretty strongly. “The SBHE violated the open meetings law when it requested people leave the room during an open meeting,” he wrote in an opinion which just landed in my inbox.

Stenehjem also had some tough words for the university system regarding their repeated violations of transparency laws (read the full opinion below):

The SBHE often seems to devote an inordinate amount of time creating unsupportable legal arguments to justify violations of the open records and meetings law after the fact. Its arguments regarding legal standing and its quibbling about a perceived distinction between “a request for an opinion” and “an open meeting complaint” are examples. Devoting the same efforts to assure compliance before violations occur could go a long way to avoid these unnecessary and embarrassing incidents in the future.

I should point out that the SAB legal department (which is just me and my copy of the ND Century Code) likely spends a lot less time finding these violations than the SBHE’s lawyers spend trying to explain them away.

Stenehjem expands on the SBHE’s quibbling with the wording of my request for any opinion in a footnote:

In its response for information to this office, the SBHE attempted to provide several other arguments in defense of its actions. For example, the SBHE argues that “Mr. Port did not request an opinion. Instead he simply stated: ‘I would like to file an open meeting complaint.’” Therefore, the SBHE argues it was not appropriate for this office to issue an opinion. This office is able to deduce from Mr. Port’s email filing an open meeting complaint that he wished for this office to issue an opinion. Such attempts by the SBHE to further escape its responsibilities under the open meetings law are without merit.

Ouch.

Stenehjem continues in the conclusion of his opinion:

I am concerned with the SBHE’s continual attempts to dismiss the duty to follow the statutory requirements of the open meetings law. It appears that the repeated warnings and opinions issued by this office finding the SBHE to be in violation of the law and  even training provided by this office to the SBHE and its legal staff, are not enough to make the SBHE follow its duties under the open meeting law.

Stenehjem has ordered the SBHE to amend the meeting minutes to reflect the discussion which took place while the audience was out of the room. The SBHE must also make audio of the discussion available, though that’s already been done (listen to it here). Also, for the next year, Stenehjem has ordered that the SBHE must put the legal justification for any planned executive session in their meeting notices.

I’ll conclude with a bit of irony. After I posted the audio of the closed public meeting back in August, Chancellor Larry Skogen and SBHE President Kirsten Diederich tried to spin the story by claiming that the meeting was never really intended to be closed and they were happy the audio got out.

Sure they were. They were so happy about it, they sicced their lawyers on the situation to manufacture legal justification for keeping the meeting closed.

Ok, one last thing. We’ve reached the point where the university system has proven over and over again that honest and transparency aren’t things they’re concerned about. So, what will our elected leaders do about it? Yes, voters shot down Measure 3, but still. Governor Jack Dalrymple appointed the SBHE. The Legislature oversees the university system’s budgets.

When will the university system be held accountable?

UPDATE: SBHE President Kirsten Diederich tells the Fargo Forum she’s “disappointed” in the ruling.

Diederich said she is disappointed by the ruling. “We will just have to keep working on this,” she said.

In August, Diederich defended the board’s actions at a Measure 3 debate, saying, “We did not break an open meetings (law). If we wanted to hide that, why were we running a tape recorder?”

AG Opinion

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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