A Kootenai County District Court judge turned down a request to have North Idaho College President Nick Swayne removed from office, and referred to an investigation into Swayne’s contract as “a sham” with a pre-determined outcome.
In a 42-page ruling handed down Wednesday, Judge Cynthia Meyer refused to overturn a previous ruling she issued in early March that restored Swayne to the NIC presidency.
“Motions for preliminary injunctions are to be defended at the time they are set for hearing,” Meyer wrote. “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’s based on at a later time.”
Meyer turned away four major points raised by NIC and Kelly Drew, the attorney representing the school in the civil suit Swayne filed in January.
NIC submitted declarations from some staffers and college executives, arguing that Swayne’s testimony in late February was inaccurate. Meyer ruled that it was too late to challenge the testimony, pointing out that the college and its legal counsel had the opportunity to do so more than two months ago.
The college argued that Swayne failed to establish that extraordinary circumstances existed for irreparable harm. Meyer disagreed, writing “What could be more extraordinary than the circumstances surrounding NIC? The college is on fire, figuratively speaking.”
“Neither party has cited to the court a case with facts similar to the circumstances unfolding at NIC,” Meyer continued. “That is likely because the circumstances are, indeed, extraordinary, compelling the court…to grant the preliminary injunction ordering Dr. Swayne’s reinstatement pending trial.”
The school contended Swayne’s credibility was tainted by comments he allegedly made at a meeting instructing NIC executives to go through the college’s chief financial officer when interacting with counsel, and to be careful when creating documents that might be “discoverable” in a legal matter. An NIC officer thought those comments were troubling and possibly legally questionable.
In response, Meyer said Swayne is in the “unenviable position” of trying to govern a college that’s actively trying to keep him from doing his job as president.
She also took issue with NIC’s framing of the alleged comments. “NIC’s characterization of these comments or instructions as reflecting unclean hands, suppressing evidence, or intimidating witnesses is hyperbole at best, or worse, something akin to gaslighting,” the judge wrote.
Finally, NIC argued that Swayne’s case against the school would likely not succeed at trial. Meyer rejected that claim, writing that Swayne’s contract did not explicitly allow the board to place him on leave, that the contract is unambiguous, and that the contract interpretation does not create complex issues of fact or law.
“Put differently,” Meyer wrote, “it appears to the court that [NIC’s board] seeks to have the contract declared ambiguous due to the Board’s ‘buyer’s remorse.’ This is absurd.”
Meyer’s ruling is the latest development in a situation that began last December. The three men who hold the majority on the five-person NIC Board of Trustees – Greg McKenzie, Todd Banducci and Mike Waggoner – voted to hire political ally Art Macomber as the school’s attorney, and placed Swayne, who had taken office just four months before, on paid administrative leave. The indefinite suspension was explained as necessary for Macomber to investigate potential open meetings law violations during the hiring process that resulted in Swayne’s employment and contract with NIC.
Swayne testified in February that he had received no further updates on Macomber’s probe, and expressed his concern that decisions being made during his forced absence would hurt the college, its staff, its students and NIC’s relationship with lawmakers and the community. The following week, Meyer ordered NIC to restore Swayne to the president’s office until his civil suit against the college is resolved. A trial is scheduled for October.
By March 6, Swayne was again NIC’s official president. March 30, the college said in a message to its accreditor that “it was clear to the campus, the board, and the community that President Swayne was president of the college.”
But hours later, on the morning of March 31, McKenzie and attorney Kelly Drew were in Meyers’ courtroom, asking her to take Swayne back out of office.
The results of Macomber’s investigation into Swayne’s contract were released April 25. Macomber argued that communication among NIC trustees, the school’s public relations officer and a consultant helping with the presidential search last June constituted a violation of Idaho open meetings law. In response to Macomber’s report, the McKenzie-Banducci-Waggoner bloc voted to “nullify” Swayne’s contract.
In her May 3 ruling, Meyer addressed that development. She reiterated her earlier finding that the window to challenge Swayne’s hiring on open meeting grounds had already closed.
“It is unfathomable why it would take months for the college attorney to determine whether, in his view, there was an open meeting law violation in the June 2022 timeframe regarding the selection of a college president,” Meyer wrote. Even if such a violation occurred, the judge said, the time to correct it or nullify the contract is in the past.
Meyer then went further, writing that the board’s decisions to hire Macomber, suspend Swayne and hire Greg South as NIC’s interim president “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’s ruling concluded with a blunt assessment of the situation.
“If the court was not clear in its preliminary injunction motion issued on March 3, 2023, let it be clear now. [The suspension] was an attempted de facto termination of Dr. Swayne, and it was not done in good faith,” Meyer added. “This protracted investigation into the formation of the contract with Dr. Swayne…is a pretext for getting Dr. Swayne out of the way. It is a sham.”
The NIC board had released no public comment on the ruling as of Thursday evening. At its April 24 meeting, the NIC Board of Trustees voted to hire a new attorney of record to replace Macomber. That successor, Boise-based lawyer Bob Faucher, is expected to take over in June. The board’s next regular meeting is scheduled for May 24.
