The State Board of Higher Education violated the state's open meetings law in January, according to an opinion issued Thursday by State Attorney General Wayne Stenehjem.
Stenehjem issued his opinion in response to a request from The Fargo Forum. According to the opinion, a quorum of the members of the state board attended a "dinner social" at the home of university system Hamid Shirvani on Jan. 16, the night before a regularly scheduled board meeting. Public business was discussed at the meeting.
Stenehjem wrote in his opinion that the board failed to post the location of the special meeting at the North Dakota University System Office or at Shirvani's house. The notice also failed to give specifics about the topics to be discussed during the meeting.
The board agenda released prior to the meeting said legislators would "review higher-education related testimony and discuss other North Dakota higher education issues" during the dinner at Shirvani's home. The board argued that the dinner was part of the regular meeting, which was held Jan. 17, but Stenehjem disagreed and said a notice of the separate, upcoming special meeting should have been released.
"Because the January 16, 2013, meeting was only included within the January 17, 2013, meeting notice, it reduced the chance of the public discovering that a separate SBHE dinner meeting was scheduled for the night before the regular meeting," Stenehjem wrote.
Stenehjem added that the wording of the notice that was given was far too vague.
"The phrase 'other North Dakota higher education issues' is exactly the type of catch-all phrase this office has deemed inappropriate for special meetings in past opinions," wrote Stenehjem. "This general phrase does not provide the public with sufficient advance notice of the topics to be discussed at the special meeting. It also fails to give the board members any indication that there are restrictions regarding what can be discussed at special meetings. The public has a right to know what topics the SBHE intended to discuss when it met with the NDUS Chancellor in his private home the night before its regular meeting."
Stenehjem also wrote that the minutes of the special meeting are inaccurate because it listed one person who was not actually present and does not give sufficient detail about what was discussed during the meeting.
Stenehjem ruled that the board must release more complete and accurate minutes from the Jan. 16 special meeting. To ensure an accurate account of the meeting, Stenehjem directed that each board member should write a detailed account of his or her recollections of what was discussed at the meeting. The board members' statements will be open record. A copy of the minutes and of the recollections of each of the board members must be released to any member of the public who asks for it, free of charge. Stenehjem wrote that the board must take these actions within seven days. Failure to do so will result in mandatory costs, disbursements or reasonable attorney fees if the person requesting the opinion files a civil suit against the board. It could also result in personal liability for the board member or members who fail to comply, wrote Stenehjem.
Stenehjem also ruled that a March 6 dinner social attended by board members wasn't an open meeting because they said no public business was discussed at it.
Board of Higher Education President Duaine Espegard said the problems noted by Stenehjem were unintentional on the part of the board and based on their own understanding of the open meetings law. Espegard said the board will follow the Attorney General's directives.
"The state's open meetings laws are complex, but the State Board of Higher Education is committed to following them at all times," said Espegard. "Now that we know how the AG views these meetings, we will change our process for the future."
Both the state board of higher education and Chancellor Shirvani have come under criticism in recent months.
Several groups, including the North Dakota Student Association as well as Minot State University's faculty senate and student association, have approved votes of no confidence in Shirvani, whose management style has been criticized. Shirvani has said he is doing as asked and is attempting to improve the state's university system, including boosting low graduation rates. The Board of Higher Education has expressed its support for Shirvani, who began work last July.
On Thursday, the State Senate defeated a resolution that would have replaced the higher education board with a three-member commission by a vote of 24-23, according to the Associated Press.