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AG says higher ed board in N.D. met illegally to discuss Shirvani buyout

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BISMARCK – The State Board of Higher Education violated open meeting laws – again – when it met privately in June before officially buying out Chancellor Hamid Shirvani’s contract in June, Attorney General Wayne Stenehjem said Tuesday.

After listening to the recording of the private “executive session” on June 3, in which the board discussed buying out the remainder of Shirvani’s contract, Stenehjem said that parts of the 77-minute session were improperly closed to the public. Shortly afterward, the board voted to move ahead with the nearly $1 million buyout.

In a separate opinion, Stenehjem said that a series of individual meetings between board members and 10 North Dakota university presidents – held about a week after Shirvani’s ouster – weren’t subject to the state’s open meetings law, in part because less than half of the board participated in each meeting.

The Forum of Fargo-Moorhead and several other North Dakota news organizations asked the attorney general’s office for an opinion on whether both meetings violated the state’s open records law.

North Dakota law requires public entities to conduct official business in public, with certain exemptions.

It’s not the first time Stenehjem has ruled that the board met illegally this year.

In a May opinion that dinged the board for two improper meetings, Stenehjem wrote that the board’s violations of open meetings laws are “pervasive.” He required all board members to complete training to avoid further violations.

In taking their June 3 meeting to discuss Shirvani’s buyout behind closed doors, the board cited a section of the state’s open meetings law which allows a public entity to privately discuss negotiating strategy in an executive session “only when an open meeting would have an adverse fiscal effect on the bargaining or litigating position of the public entity.”

Stenehjem said that only applied to a portion of that meeting, in which the board consulted with an attorney about which of four different buyout proposals would put the board on the best legal footing.

The remainder of the executive session – including a run-through of how Shirvani’s buyout had come about and a discussion of which buyout option was best – should have been open to the public, Stenehjem said.

Stenehjem ordered the board to turn over a transcript of the portions that should have been public.

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