BISMARCK – The State Board of Higher Education violated open meetings law when it asked attendees of a July 30 meeting to leave the room so a consultant could speak only to board members, the state attorney general ruled Friday.
During its summer retreat, the board brought in Tom Meredith, a former chancellor of two state university systems, to advise members on issues plaguing the board.
In a recording of the meeting, board chairwoman Kirsten Diederich can be heard asking everyone but board members and legal counsel to leave so the board could have a conversation with Meredith.
“We will have our legal counsel here to make sure we are not conducting business of any type, but it would be our request that you give us a little time to be with Tom alone,” Diederich said. “However, you have the right to stay if you like.”
In Attorney General Wayne Stenehjem’s opinion, he said giving people the option to stay was not a legal defense.
“It is unlikely the people attending the meeting felt they had a real choice,” he wrote.
The attorney general’s opinion was requested by Rob Port of the “Say Anything” blog.
Stenehjem’s opinion also expressed a general dissatisfaction with the board’s open meetings compliance.
“I am concerned with the SBHE’s continual attempts to dismiss the duty to follow the statutory requirements of the open meetings law,” he wrote.
“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.”
In 2013, during a tumultuous several months that led to the buyout of former Chancellor Hamid Shirvani, Stenehjem found that the board and chancellor violated open meetings laws at least four times.
For instance, in May 2013 Stenehjem wrote that the board’s violations of open meetings laws were “pervasive” and required all board members to complete training to avoid further violations.
The training was on June 2. The next day, it closed a meeting to discuss buying out Shirvani’s contract – a meeting that Stenehjem later ruled should have been held in public.
More recently, he said the board’s interview with the Higher Learning Commission in April violated open meetings law.
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?”
On Friday, she said the board would continue training and, in the future, might contact the attorney general prior to decisions regarding consultants.
Stenehjem ordered that for the next year, any notice of a SBHE meeting that includes an executive session must explain why a private meeting is necessary and cite the legal authority allowing it.