North Dakota Attorney General Calls Higher Ed Open Meetings/Records Violations "Pervasive"


Previously Attorney General Wayne Stenehjem released an opinion finding that the State Board of Higher Education had only a minor open meeting violation, but upon further review the AG finds “pervasive” violations.

“On April 18, 2013, I issued an opinion to the State Board of Higher Education (SBHE) wherein I determined the Board violated the open meetings law when it failed to properly notice a meeting held at the home of the University System Chancellor, Dr. Shirvani, as a special meeting and take the necessary minutes,” reads the opinion. “The day after the opinion was issued, Janice Hoffarth, the Board’s staff advisor contacted me because she was not aware that the Board’s official response stated that the meeting was purely social and said she did not agree with the assessment.”

The opinion states that Hoffarth feared for her employment after contacting the AG.

Stenehjem then re-contacted Chancellor Hamid Shirvani and the State Board of Higher Education members and, after reminding them that it is against state law to provide false statements, ask ed them to prove an account of the meeting in question. He found that their responses indicated significant SBHE business was conducted.

“The responses received by this office about what actually occurred during the March 6, 2013, dinner social varied in particulars but not in substance,” reads the opinion. “Although several members say they believed the conversations were social in nature, the topics of discussion they described were, in fact, substantive board business.”

Stenehjem states in the opinion that he “will not tolerate” either “feigned” or actual ignorance of open records laws. The opinion also found that Chancellor Shirvani and the State Board of Higher Education had violated open meetings law by using emails and phone calls to discuss board business.

“In addition to being questioned about what actually occurred at the March 6, 2013, dinner meeting, this office asked each SBHE member and Chancellor Shirvani whether they were ‘aware of any instances since January 1, 2013, where a quorum of the Board has discussed public business by e-mail or sequentially by telephone,'” reads the opinion. “In response, Board members and Chancellor Shirvani provided additional documents that reveal that e-mail is commonly used by both Board members and Chancellor Shirvani in a manner that results in widespread open meeting violations.”

The opinion says that while some board members do make good-faith efforts to follow transparency laws, some may be purposefully defying them.

“There is sufficient reason to conclude that for some members failure to comply may be intentional,” reads the opinion.

Pretty devastating stuff for Shirvani and the State Board of Higher Education. This is, at best, incompetence and at worst a purposeful effort to keep their actions out of the public’s eye.

Let’s hope the measure the legislature passed to restructure the governance of higher education is passed by the voters and puts this whole lot out of a job.

Here’s the opinion:

North Dakota AG Open Records Opinion