Swayne sues NIC for investigative report
COEUR d’ALENE — North Idaho College President Nick Swayne has filed a lawsuit against NIC, asking the court to compel the college to turn over an investigative report that has been at the center of debate on the board of trustees.
The petition, filed Nov. 17 in 1st District Court in Kootenai County, alleges NIC violated Idaho public records laws by denying Swayne’s request for a copy of the report, which he says involves allegations against him by another NIC employee.
A hearing in the case is set for Dec. 15.
It appears the board and legal counsel for the college have been aware since March of a potential lawsuit from an NIC employee. In June, the board voted to authorize hiring a third-party investigator for an undisclosed personnel matter and hired Spokane-based attorney Jenae Ball.
Ball’s investigation pertained to allegations made against Swayne by another college employee, according to court records, the results of which were to be shared with both parties.
In September, the board voted 3-2 to authorize college attorney Art Macomber to negotiate terms of a settlement with the employee — nearly a month before the investigation was complete. Trustee Tarie Zimmerman indicated the proposed settlement was $1.3 million.
Trustees reportedly received a copy of the finished investigative report Oct. 13, via Macomber. Swayne said he sought a copy of the report “under certain conditions of confidentiality” that had been agreed upon in advance, but NIC allegedly refused to provide it.
Swayne then sought a copy of the report via public record request, court records show, citing multiple subsections of the public record statute.
Under Idaho law, a person may inspect documents from an investigative file “to which he or she is a named party” if such documents are not otherwise legally prohibited from disclosure.
Public officials or authorized representatives may inspect and copy their own personnel records, except for material used to screen and test for employment. A person may also inspect and copy the records of a public agency pertaining to that person, even if the record is otherwise exempt from public disclosure.
Macomber contacted Swayne’s legal counsel via email the day after he submitted the public record request, indicating he was sure Swayne “can view his own personnel records” but questioning whether the report is a personnel record.
“I am sure the report is not in his file,” Macomber wrote.
Since trustees received the report in October, the investigative report has come before the board twice, appearing on agendas for the Oct. 25 and Nov. 20 meetings. Both times, the matter was tabled without discussion or action.
NIC formally denied Swayne’s public record request Oct. 30, citing exemptions for disclosure detailed in Idaho public records law.
Attorneys for Swayne argue the law does not support NIC’s position. For example, when pointing to an exemption for documents that are exempt from disclosure “by federal or state law or federal regulations,” the college did not specify which law formed the basis for the denial.
The college also noted that certain personnel records of a current or former public official are exempt from disclosure without the employee’s written consent. But the same statute provides that public officials or authorized representatives may inspect and copy their own personnel records.
The right to inspect records pertaining to oneself does not include the right to review investigatory records if an investigation is ongoing, NIC noted in its denial. Swayne’s attorneys contend the investigation was completed in October and is not ongoing.
Under Idaho law, the sole remedy for a person “aggrieved by the denial of a request for disclosure” is to petition the district court to compel the public agency to make the information available to the public.
Multiple sources have indicated to The Press that the personnel matter is related to Laura Rumpler, NIC’s former chief communications and government relations officer and may involve allegations of retaliation against her by Swayne. Rumpler resigned in September.
In a signed affidavit filed as part of NIC’s response to Swayne’s lawsuit seeking reinstatement, Rumpler said Swayne had directed members of his cabinet not to respond to direct questions from NIC’s defense counsel and to instead communicate with counsel through the college’s vice president of finance and business.
“Participating in this process has been extremely difficult for me,” Rumpler wrote. “I have been placed between a rock and a hard place. I have been asked to share factual information to support the institution that I have a duty to represent, which puts me in a very difficult position with my direct supervisor who is suing the institution. I believe that the other members of the president’s cabinet are uncomfortable coming forward and submitting declarations out of concern of reprisal based on this impossible situation.”
Swayne said in court filings that he did advise Rumpler to act with caution and avoid creating potentially discoverable documents — not in relation to his own lawsuit against NIC, as Rumpler insinuated, but regarding a separate lawsuit the Hagadone Corporation had filed against Rumpler and the college. The judge in that case found NIC and Rumpler had violated the state's public records law.
In a written decision, the court indicated it “views NIC’s characterization of Dr. Swayne’s remarks with considerable skepticism.”