Judge orders Swayne reinstatement; NIC trustees to meet Monday night
A Kootenai County District Court judge has ordered North Idaho College to reinstate suspended president Nick Swayne.
In a 42-page order handed down Friday evening, Judge Cynthia Meyer found that NIC’s three-person majority lacked the power to put Swayne on administrative leave without cause and that the school provided weak justification for doing so. She also found Swayne’s career would be harmed by the college’s decisions during and after the administrative leave was set in motion.
“In the most charitable light,” Meyer said, the decision to place Swayne on leave last December “can be characterized as misguided,” but that keeping him on leave without cause is “hostile and arbitrary.”
Trustees Greg McKenzie, Todd Banducci and Mike Waggoner voted to place Swayne on leave December 8, ostensibly so an ally, NIC attorney Art Macomber, could conduct an investigation into language in Swayne’s employment contract that reduced the board’s power to fire him without cause. Swayne has been on leave since then, with no updates from Macomber about the status of the investigation. In the meantime, McKenzie, Banducci and Waggoner hired Greg South to be North Idaho College’s interim president, and invested in him authority they denied Swayne.
In a February 24 court hearing, Swayne testified that those decisions and others made by the majority trio were improper and would damage his ability to lead the college if and when he returned to the president’s office.
“To the court, it appears that the investigation is a sham and pretext for Dr. Swayne’s removal from his position as President,” Meyer’s decision read. “This conduct violates the covenant of good faith and fair dealing and constitutes sustained harm against Dr. Swayne by the Board.”
Judge Meyer rejected NIC’s contention that Swayne’s contract, approved in the summer of 2022, did not explicitly bar the board from suspending the president.
“The analysis in this case is simple,” she wrote. “The agreement contains no provision permitting NIC to place Dr. Swayne on administrative leave. Nor does the plain language permit the court to infer such a provision. Therefore, as a matter of law, the court determines that NIC did not have the authority to place Dr. Swayne on administrative leave without cause under the plain language of the agreement.”
Meyer also turned away NIC’s argument that suspending Swayne was allowable under an implied power derived from the Board of Trustees’ ability to terminate a president’s contract. The suspension, Meyer said, exceeded the board’s authority.
The judge said the decision to place Swayne on leave and the leadership confusion that followed damaged NIC’s reputation and seriously jeopardize the college’s accreditation.
“The Board’s majority has wrongfully locked its captain in the brig while steering NIC toward an iceberg,” Meyer wrote.
The order also said the hiring of Greg South may have violated Idaho law.
“While NIC may certainly hire someone to fill a temporary vacancy, Idaho Code…does not permit NIC to hire a second, permanent president with responsibilities that are virtually identical to the first president’s responsibilities,” Meyer wrote.
It is not clear what will happen to South now. His employment contract sets an end date of June 2024, and contains no provision for Swayne’s return to the president’s office.
The North Idaho College Board of Trustees was set to hold a special meeting Saturday evening.
Midday Saturday, NIC announced the meeting had been rescheduled for Monday, March 6, at 6:30 p.m.
"When originally noticed on March 3rd to comply with timeframes for notification per Idaho open public meetings law, Saturday night's special board meeting did not include a Zoom link but was actively being worked on prior to the meeting," the college said in a statement.
The board’s agenda includes three action items: presidential leadership, the president’s authority and responsibility, and the president’s performance review. The board, the agenda said, does not accept public comment at special meetings.