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Emails show NIC trustees, lawyer planned meetings in private

by KAYE THORNBRUGH
Staff Writer | April 21, 2023 1:07 AM

COEUR d’ALENE — North Idaho College attorney Art Macomber and trustees Greg McKenzie, Todd Banducci and Mike Waggoner used personal email addresses to secretly prepare for public meetings during which the three trustees, as a board majority, hired Macomber and ousted NIC President Nick Swayne by placing him on administrative leave.

Two such emails revealing the communications became public Thursday as part of a lawsuit filed by Mike Gridley, the former attorney for the city of Coeur d’Alene.

The lawsuit, submitted to the court in December 2022, accuses Macomber and the three trustees of fraud and of violating Idaho’s open meeting laws. The suit also alleges interim president Greg South has received “unjust enrichment” as a result of his hiring.

Emails obtained through the discovery process show private planning for public meetings by a board majority: Banducci, McKenzie and Waggoner.

“The emails memorialize ‘This is what we want to do at the December meetings,’” said Kinzo Mihara, the attorney representing Gridley, before Judge Ross D. Pittman during a hearing Thursday in Kootenai County Magistrate Court.

Court records show that Macomber sent an email Nov. 21 — two weeks before his hiring — to McKenzie, Banducci and Waggoner via their personal email addresses.

Banducci and Waggoner frequently use personal email accounts for college-related communications, while McKenzie typically uses his NIC-provided email account, although he too uses a personal email account at times.

“Leslie and I are leaving on December 15 for Texas and returning December 29,” Macomber wrote. “The December NIC meeting could be the 14th or earlier, or December 30, unless you guys want to pay me to fly for a day in between. I would say it’s not worth it and either set it earlier in the month or really late.”

“I would suggest earlier,” replied Waggoner.

In a Dec. 1 email to the three trustees, Macomber attached and described documents he had created in preparation for meetings that would occur throughout the month.

“These three resolutions cover the bases,” Macomber wrote. “Also, the letter to Lyons is changed.”

One resolution instituted a hiring freeze for the president’s cabinet, while the other two had to do with the college’s legal counsel.

The letter was a demand that Marc Lyons, the college’s former attorney, turn over “all NIC records” in his possession. Lyons resigned from his position last November, after 23 years, citing tensions on the board of trustees.

The other two trustees on the five-member board, Brad Corkill and Tarie Zimmerman, confirmed Thursday that they had no knowledge of the private communications between Macomber and the other trustees.

Gridley has asked the court for permission to amend his civil complaint to include new information unearthed through the discovery process, including the emails.

Mihara argued in court Thursday that the emails are relevant to the case because they involve violations of Idaho’s open meeting laws, which exist to prevent the public’s business from being conducted in secret.

“Sunshine needs to shine on these facts,” Mihara said.

Brittney Adams, an attorney representing South and the three trustees, rejected Mihara’s assertion that the emails are evidence of illegal serial meetings.

“These weren’t serial meetings,” Adams said. “This was a series of emails.”

Serial meetings, which violate Idaho's open meeting law, occur when a majority of members of a governing body have a series of small gatherings or communications to make a decision or deliberate toward a decision, even if a majority is never part of any one communication.

Idaho’s open meeting law requires that all meetings of a governing body of a public agency shall be open to the public, with meeting notices and agendas shared with the public prior to a meeting. The law defines a meeting as any convening of a body to make a decision or deliberate toward a decision on any matter.

At the Dec. 5 board meeting, Macomber and Banducci said that Banducci had drafted the resolutions presented that night.

Three days later, in a subsequent board meeting, Macomber revealed that he had written the resolutions and gave them to Banducci. The Dec. 1 email confirms that he also shared the resolutions with Waggoner and McKenzie ahead of time.

Macomber, who donated to the political campaigns of the three trustees he’d secretly emailed, also claimed during the Dec. 8 meeting that he didn’t anticipate being hired as the college’s new legal counsel. He said he’d taken it upon himself to write his own fee agreement after Lyons resigned.

“I didn’t know if there were other attorneys they were thinking of,” Macomber said Dec. 8. “But I thought, ‘You don’t get anywhere by just sitting back and waiting for life to happen to you.’ So I brought the fee agreement and there it was. These guys voted me in.”

His earlier emails contradict that statement, showing he planned for the board majority to hire him.

Other documents in Gridley’s amended complaint showed that Greg South altered the contract of a temporary employee to add a $40,000 exit bonus after that employee had already resigned. This occurred three hours before trustees complied with a court order to reinstate Nick Swayne as active president.

Emails from South indicate that Jim Forkum, an interim South hired in early January, resigned from his position March 5.

In a declaration filed with the court, Macomber said South instructed him verbally March 6 to draft a modification of Forkum’s contract. He said South didn’t tell him that Forkum had already resigned.

At 6:35 a.m. the same day, Macomber reportedly emailed trustees and members of the president’s cabinet to say that Swayne was not president until the board formally acted to reinstate him, according to records obtained by The Press.

That afternoon, South and Forkum signed the modification prepared by Macomber, which stipulated that Forkum would be paid as if he had worked through June 18, 2023, if he or NIC ended his employment before that date.

“The agreement as signed on January 10, 2023 neglected to add termination provisions related to how Dr. Forkum would be paid by North Idaho College if the contract was terminated early,” the document said.

The cost of implementing the modification would be $52,238.40, an additional $40,000 over the amount owed according to Forkum’s original contract.

Judge Pittman said Thursday that he will consider whether to allow Gridley to amend his complaint and issue a ruling at a later date.

Read the documents at cdapress.com.

Documents from Greg South and Art Macomber

Art Macomber declaration, including emails

Gridley motion to amend complaint

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Macomber

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McKenzie

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Banducci

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Waggoner