NIC releases Macomber report
North Idaho College attorney Art Macomber attended a recent community forum about accreditation. KAYE THORNBRUGH/Press
Hagadone News Network | April 26, 2023 1:00 AM
COEUR d’ALENE — A report issued by North Idaho College attorney Art Macomber recommended that trustees nullify President Nick Swayne’s employment contract due to an open meeting law violation that allegedly occurred the day Swayne was hired.
Trustees Todd Banducci, Greg McKenzie and Mike Waggoner took Macomber’s advice Monday night, voting to nullify the contract but keep Swayne on as active president until further notice.
Tarie Zimmerman and Brad Corkill strongly opposed voiding the contract based on the report. Corkill said Macomber’s “unhinged analysis” appeared to be a “roadmap for a coup to get rid of the college president.”
NIC published the full 173-page report Tuesday afternoon after trustees agreed to release it to the public. Read it at bonnercountydailybee.com.
Macomber acknowledged in the report that an order issued last month by Judge Cynthia Meyer — which called Macomber’s investigation into Swayne’s contract “a sham” — prohibits firing Swayne and that doing so could result in charges of contempt. In fact, following the board’s Monday night vote, a contempt hearing in Swayne’s lawsuit is scheduled for June 2.
But if trustees nullify the contract, Macomber argued, the judge’s order is no longer binding.
“The board should recognize the Swayne contract is null and void,” Macomber said. “As such, the Swayne lawsuit may and likely should fail for a lack of valid contract to interpret.”
The allegations of an open meeting violation stem from a phone conversation between Laura Rumpler, NIC’s chief communications officer, and Angela Provart, the independent consultant who facilitated the national search for presidential candidates.
NIC trustees met June 22, 2022, to choose a president from among four finalists. Prior to the meeting, in preparation for the announcement of the trustees' choice of a president, Rumpler reportedly prepared a news release for each finalist, so that one would be available as soon as one of them was selected to be hired.
The morning of June 22, she reportedly sent an email to Provart, as well as to former trustee David Wold and former NIC attorney Marc Lyons.
“If there are two of the four candidates that are rising to the top, can you give me an indication so I can best prep, knowing we won’t know the final outcome until the board takes action tonight?” Rumpler wrote. “I’d really like to narrow down our work and strategy if possible.”
Later that morning, Rumpler said she and Provart spoke on the phone.
Rumpler alleges that Provart told her Swayne would be selected that night.
“Telephone conversations are difficult to verify, but the facts show Ms. Rumpler concluded her email exchanges with (the other finalists) early in the afternoon, while her exchange with Dr. Swayne continued late in the afternoon,” Macomber wrote in his report.
It appears that Macomber did not speak to Provart about the matter.
Provart confirmed via email with The Press Tuesday that she checked in with the trustees toward the end of the search process to gauge their feelings about the finalists.
“I reached out to all trustees individually, never as a group,” she said. “I talked with all trustees except for Banducci and McKenzie, as they did not respond to my messages.”
In the report, Macomber was critical of Swayne’s relationship with the NIC Foundation, an independent nonprofit founded in 1977 to encourage private support for NIC. Governed by a volunteer board of directors, the NIC Foundation solicits, accepts and stewards resources, including private donations, to enhance college programs and provide student scholarships.
The college president traditionally serves as the Foundation’s corporate secretary. Macomber suggested this may be inappropriate and that Swayne’s loyalty may be split between the college and the charity that supports it.
“The board of trustees may want to reevaluate those potential conflicts, especially if Dr. Swayne is enjoying a second paycheck or other remuneration from the Foundation in addition to his presumably primary paycheck as North Idaho College President,” Macomber said. “This author has no written evidence of monetary payment from the Foundation to Dr. Swayne.”
Macomber insinuates a conspiracy involving the NIC Foundation and the State Board of Education. The three former trustees who voted to hire Swayne were all connected to the NIC Foundation. John Goedde and David Wold had served as board members, while Pete Broschet worked for a board member. Macomber implied that the State Board of Education appointed the trio to the NIC board because of their connections to the charity.
He added that the board should “reconsider the college’s relationship to this private entity.”
Macomber did not interview the former trustees he accused of participating in a conspiracy to hire Swayne. Instead, he issued subpoenas to them, along with college employees and others.
Macomber described Swayne’s lawsuit seeking reinstatement to his job as “unexpected” but “lucky” because it opened the door for him to issue subpoenas for information about Swayne’s hiring he might otherwise be unable to access.
The court quashed three of the subpoenas, calling them “unreasonable and oppressive.” Legal counsel assigned by NIC’s insurer withdrew the rest.
Macomber criticized those who did not comply with his subpoenas and said they are responsible for errors in his report.
“If any action taken by the board of trustees based on this report is found later to be in error due to a lack of information purposefully withheld by those parties, the public should understand that the blame for needless costs and delays must lie at the feet of those persons,” he said.
In her ruling, Meyer noted that the window for any action related to a June 22 open meeting violation closed in January, six months after the hiring.
Macomber disagreed, asserting that a public governing body may “self-recognize” an alleged violation and act upon it at any time, even years after the fact.
“If the board of trustees of North Idaho College wants to self-recognize its own violation of the Open Meetings Law that it may determine occurred in June of 2022, the use of this report to substantiate such act would not be time-barred under the statute,” he said.
But McKenzie and Banducci began to publicly question the legitimacy of Swayne’s hiring the very night he was selected as president, long before Macomber’s report existed.
In the June 22 board meeting, Banducci suggested Swayne’s hiring was a “naked power grab” coordinated by former trustees, the Idaho State Board of Education, Judge Meyer, the Attorney General’s Office, the governor and others.
“As far as I’m concerned, this entire process is null and void,” he said.
McKenzie, too, voiced concerns about “corruption” in the search process.
The pair also objected to voting for a president without first meeting in executive session to discuss the candidates. To enter closed session, four trustees must agree; the private session did not occur because McKenzie and Banducci blocked it.
At least $19,074 was spent to create this report, according to Macomber’s invoices from February and March, which make specific references to a “board report.”
However, because Macomber’s invoices are heavily redacted and his April bill is not yet available, it’s impossible to know the true cost of the report to North Idaho College.