Hearing date set for challenge to NIC subpoenas
Next week, a Kootenai County judge will hear arguments in a request to quash subpoenas sent to former North Idaho College trustees and the school’s former legal counsel.
In a hearing scheduled for February 15, attorneys will present to Judge Cynthia Meyer their contention that the subpoenas fall outside the scope of NIC President Nick Swayne’s civil suit against the college, and seem to be aimed more at causing trouble than finding answers.
NIC attorney Art Macomber sent the flurry of subpoenas in early January, as part of an investigation focusing on a change to Swayne’s contract that removed the board of trustees’ power to fire Swayne without cause.
The subpoenas Macomber issued carried a broad request: all documents, records and communications “related in any way” to Swayne’s hiring and employment contract. They went out not only to trustees involved in Swayne’s hiring, but to former board members, a former interim president of the college and NIC executives who recommended Swayne be reinstated after a December 8 vote put him on administrative leave.
Macomber and the trustees that hired him have not provided further details on what the investigation is trying to discover. A letter from Macomber to Swayne the day after the suspension was approved said the leave was not for disciplinary reasons. Why a contract change approved by NIC’s board in a public meeting needed investigation has not been clearly stated, according to the motion.
The motion filed to quash the subpoenas suggested the demand for records was more about the board majority’s ongoing friction with Swayne, past trustees and college administrators than about a problem with contract language.
“These efforts are shocking at best and appear more and more intended for harassment and an abuse of process,” read the motion, filed by Coeur d’Alene law firm Lyons O’Dowd. “The fact that a current majority of the Board seemingly disapproves of the prior-Board’s decision is certainly not sufficient justification for a carte blanch search of records.”
Marc Lyons served as NIC’s counsel of record for more than 20 years before resigning last November, saying he felt the board majority “no longer desired” his services. He was among those subpoenaed in January. In the filing, Lyons argues the subpoenas fall outside the substance of Swayne’s civil suit against NIC, and therefore are “unreasonable and possibly part of an irrelevant fishing expedition.”
The motion also argues that Macomber’s involvement in the situation – recommending putting Swayne on leave, carrying out the investigation into Swayne’s contract and serving as the college’s current counsel – creates a conflict of interest and possibly violates the professional standards for lawyers in Idaho.
After the subpoenas were issued, Macomber was replaced as the school’s active lawyer in the Swayne suit by Boise attorney Bret Walther. Macomber remains NIC’s attorney of record on other matters.
Lyons’ motion asks that, should Judge Meyer reject the request to quash the subpoenas, NIC’s counsel re-write the subpoenas to be more specific, justify why the requested records are necessary, and explain why they can’t be obtained through other methods.
Former NIC trustees Ken Howard and Christie Wood are also challenging the subpoenas they received. Howard and Wood left the board in early May 2022. They were not involved in the process to hire Swayne. But they did frequently lock horns with the board’s three-person conservative majority. Two members of that majority, Todd Banducci and Greg McKenzie, voted against Swayne’s contract in July 2022. Less than five months later, they, along with newly-elected ally Mike Waggoner, hired Macomber and suspended Swayne within the same week.
A second hearing in the Swayne lawsuit is scheduled later this month. Attorneys in that hearing, set for February 24, will ask a judge to block NIC and its interim president, Greg South, from making significant changes to the school or its executive staff before a final judgment is rendered in Swayne’s civil suit.
A hearing on the core contentions of Swayne’s suit – that the board lacked the power to sideline him and asking for his reinstatement – has yet to be scheduled.