Judge considers motion to undo Swayne decision

COEUR d’ALENE — A court hearing Friday morning revealed that North Idaho College attorney Art Macomber appears to have widened the scope of his investigation into NIC President Nick Swayne’s employment agreement.

The new details emerged while Judge Cynthia Meyer heard arguments as to whether she should undo her order that restored Swayne to his position as active president while his lawsuit seeking permanent reinstatement proceeds.

Meyer did not rule on the matter Friday and will issue a written decision at a later date. In the meantime, Swayne remains active president.

Swayne’s contract stipulates that he may be terminated for cause by a supermajority vote of the board — four out of five trustees.

Kelly Drew, a Spokane-based attorney representing NIC in the lawsuit, said Macomber is evaluating whether the supermajority clause could be illegal.

“It constrains the typical decision-making authority of the board,” Drew said.

Friday marked the first public update on the investigation since it was launched in December, when Macomber advised trustees to place Swayne on administrative leave.

At the time, Macomber cited a need to investigate the correction of a scrivener’s error in Swayne’s contract, which occurred in a public meeting last August. He has not publicly mentioned the termination clause.

Meyer questioned how long the investigation will take.

“It is my understanding that it is taking quite a bit of time,” Drew said.

“Well, yes, because we’re now four months in,” Meyer replied.

Though the contract was approved last July, Drew said Macomber did not “realize the potential illegality” of the termination clause until December.

Drew said Meyer should reconsider her earlier decision in part because NIC alleges Swayne gave inaccurate testimony about the development of a strategic plan and the hypothetical costs associated with changes to NIC’s athletics programs.

Meyer did not allow live testimony Friday from NIC’s witnesses, saying the appropriate time for them to testify about such matters was during the original preliminary injunction hearing.

The college brought no witnesses and no evidence to the Feb. 24 hearing, choosing instead to rely on legal arguments alone.

“NIC had reasonable notice of the subject matter Dr. Swayne would discuss and had nearly a month to prepare for the hearing and present the evidence it seeks to present now,” Meyer said.

She added that the “new” evidence NIC proffered is not new at all.

By sitting on the information until after her previous ruling, Meyer said, NIC either made a “tactical decision” not to challenge the facts as Swayne presented them or failed to diligently pursue a defense.

“Either way, it appears to the court that the defendant does not seek a reconsideration of this court’s order granting a preliminary injunction but is seeking an entire do-over of the initial hearing by asking to submit a significant amount of testimonial evidence on subject matters that should’ve been in the record five weeks ago,” she said. “It’s not the purpose of a motion for reconsideration.”

Since his reinstatement, Drew contends, Swayne has tried to “circumvent the rule of law” by instructing members of his cabinet not to communicate directly with NIC’s legal counsel about his ongoing lawsuit. Instead, cabinet members were directed to go through Sarah Garcia, NIC’s vice president of finance and business.

Swayne also reportedly advised NIC communications officer Laura Rumpler to “tread lightly” and avoid creating potentially discoverable documents while embroiled in a lawsuit.

“Dr. Swayne was taking efforts to silence his challengers,” Drew said.

In a signed affidavit, Rumpler implied the pair were discussing Swayne’s lawsuit, while Swayne says they talked about a separate lawsuit filed by this newspaper, which alleges that Rumpler violated Idaho’s public records laws.

Swayne’s attorney, Tara Malek, said Swayne “vehemently denies” the accusations and the court should be “highly skeptical” of Rumpler’s information.

“NIC believes, because the court’s decision was based on the credibility of Dr. Swayne, that this opens the door for them to attack him personally, attack his reputation, attack his credibility with whatever they can so that the court questions what was presented,” Malek said.