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Judge upholds Swayne’s reinstatement

by KAYE THORNBRUGH
Hagadone News Network | May 4, 2023 1:00 AM

COEUR d’ALENE — A Kootenai County judge reaffirmed her order requiring North Idaho College to reinstate Nick Swayne as the college’s active president.

Judge Cynthia Meyer issued a written decision Wednesday afternoon denying NIC’s request that she overturn her March decision, which forced the college to restore Swayne to his job while his lawsuit seeking permanent reinstatement proceeds.

“If the court was not clear in its preliminary injunction motion issued on March 3, 2023, let it be clear now,” Meyer wrote. “This was an attempted de facto termination of Dr. Swayne and it was not done in good faith. This protracted investigation into the formation of the contract with Dr. Swayne — whether the investigation involves potential missteps of others or even the current concern with the legality of the four-trustee vote to terminate the president — is a pretext for getting Dr. Swayne out of the way. It is a sham.”

In her ruling, Meyer rejected the college’s arguments for why she should undo her order, including an assertion that Swayne’s circumstances are not extraordinary enough to justify the court’s intervention.

“What could be more extraordinary than the circumstances surrounding NIC?” Meyer wrote. “The college is on fire, figuratively speaking. Literally, the college is ‘at risk for viability’ according to (its accrediting body).”

Meyer determined that the “new evidence” NIC brought before the court was not new at all and should have been presented five weeks earlier, when the court first considered Swayne’s request for a preliminary injunction.

“A party does not get to wait for a court to issue its decision, then create a defense for the purpose of attacking the court’s decision and the evidence it is based on at a later time,” she wrote.

The court also reaffirmed an earlier determination that the clock has run out for North Idaho College to nullify Swayne’s contract under Idaho’s open meeting law — an action the board’s majority took last week, at the urging of NIC attorney Art Macomber.

In a report made public last week, Macomber said college trustees should recognize Swayne’s contract as “null and void” due to unproven allegations of open meeting violations that Macomber believes occurred prior to Swayne’s June 22, 2022 hiring.

Though Idaho law provides a 180-day window in which open meeting law violations can be cured, Macomber argued that a public governing body may “self recognize” an alleged violation and act upon it at any time, even years after the fact.

Meyer noted the board majority initiated an investigation into possible open meeting law violations stemming from June 2022. Trustees had 14 days after that date to cure any alleged violation, she said.

The judge pointed out that even after trustees complied with the court’s order to reinstate Swayne, the board majority has kept Greg South, the interim president hired to replace Swayne for 18 months or longer, on standby and on paid administrative leave.

“The board’s majority made no effort to conceal the intended conclusion of Mr. Macomber’s investigation: that an open meeting law violation occurred during Dr. Swayne’s contract formation which the board’s majority will attempt to use to nullify his contract,” Meyer wrote. “These circumstances made it clear to the court that the outcome of this investigation was predetermined.”

Read the full decision at cdapress.com.

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