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NIC board hires Boyles, keeps Macomber on as well

by KAYE THORNBRUGH
Staff Writer | August 25, 2023 1:08 AM

COEUR d’ALENE — North Idaho College has two attorneys for the foreseeable future.

Trustees Greg McKenzie, Todd Banducci and Mike Waggoner voted Wednesday night to hire Sandpoint-based attorney D. Colton Boyles as NIC’s general legal counsel and retain attorney Art Macomber for certain projects. Trustees Brad Corkill and Tarie Zimmerman opposed both actions.

“Colton Boyles, congratulations,” McKenzie said at the close of the meeting. “You are general counsel. I encourage you to watch this board meeting and kind of understand the different various sentiments of board members and their various concerns.”

“You are ruining us,” a college employee shouted at the trustees from the back of the meeting place, the Lake Coeur d’Alene Room in the Edminster Student Union Building.

The move came after months of uncertainty about NIC’s legal counsel. Trustees voted in April to hire Boise-based Firm Holland and Hart, then reversed course a month later.

During a May board meeting, Macomber said his contract with NIC would end Aug. 15 and his work for the college up to that date would only be to facilitate the transition to new legal counsel. He then walked out of the meeting and left the building.

Macomber said Wednesday that this was not a resignation, but rather a “withdrawal.”

His contract did not end last week.

“It was extended ... at the will of the chair to continue the projects he was working, which include the investigation of the personnel matter,” Banducci said before Wednesday’s meeting.

It’s unclear when that decision was made.

Banducci proposed Wednesday that Macomber continue working for the board in three specific areas: NIC policies, the college president’s summer 2023 evaluation and an investigation into an unspecified personnel matter. The board set no end date for his work.

Macomber said he’s increasing his fee from $325 per hour to $400 per hour because he’s faced sharp criticism from the public over his work at North Idaho College.

“I’ve worked for many months at $325, and I can’t do that anymore,” Macomber sad.

The fee increase was not publicly disclosed until Zimmerman asked about it.

“I don’t think the community knows about that,” she said. “This is an open meeting and so we should have that discussion.”

Banducci also made the motion to hire Boyles, who was recently hired to represent the Community Library Network and whose fee is $275 per hour.

NIC’s longtime legal counsel, the firm Lyons O’Dowd, billed at a rate of $200 per hour.

The other applicant up for consideration was Spokane-based firm Stevens Clay.

Attorneys for Stevens Clay have served as general counsel for Eastern Washington University, as well as general counsel for the Community Colleges of Spokane and Big Bend Community College. The firm has served as general counsel and litigation counsel to around 100 school districts throughout the region.

When the board last met in June, Corkill and Zimmerman strenuously objected to hiring Boyles and maintained their objections Wednesday.

Zimmerman pointed to a panel review, which scored the legal counsel applicants on different factors, including their experience working with governmental agencies on matters relevant to NIC, such as disability services and public records law compliance.

Stevens Clay received an overall score of 97%, while Boyles scored 60% overall.

“How can we put forth someone who scores 60%?” Zimmerman asked. “That’s a D minus, just off the ledge of a failure. I’m not saying that Boyles is a failure, but in terms of competition with other candidates, he doesn’t compete. We’re supposed to do what’s in the best interest of North Idaho College.”

When Boyles emailed his retainer agreement engagement letter to NIC in June, he included additional commentary.

“We are cataloguing derogatory statements made about my firm and me personally and note that we have not had a chance to address or rebut the false (and some defamatory) allegations to the board or president either publicly or in executive session,” Boyles wrote.

Unlike Stevens Clay, Boyles did not provide additional information requested by NIC, including relevant client references, examples of insurance coverage negotiations experience, years of experience representing higher education clients and whether he had any criminal or civil suits against him in the past seven years.

Boyles pleaded guilty to driving under the influence in December 2022. He remains on unsupervised probation until Dec. 12, 2023.

“It has become clear to me that the ‘group of administrators’ conducting the RFQ review are biased against me and my firm and that we are not being fairly considered,” Boyles said in an email to the college.

“Boyles has been accusatory,” Zimmerman said Thursday. “He’s been combative to the very people he’s applying to work for. His refusal to complete the interview process disqualifies him.”

In a normal contracting situation, NIC President Nick Swayne said that refusing to answer such questions would disqualify a candidate.

Sometime between December 2022 and early March, former interim president Greg South reportedly “recommended strongly against” pursuing Boyles as legal counsel.

Zimmerman called Boyles’ engagement agreement a “hot mess,” pointing to a provision that requires NIC to “waive in advance any conflict that might result” from Boyles representing current future clients who have disputes or transactions with NIC.

Macomber advised against approving Boyles’ agreement without striking the conflict clause.

Waggoner said he analyzed Stevens Clay and noted that one of the firm’s attorneys “only has Title IX experience,” referring to a federal civil rights law that prohibits sex-based discrimination in any school or education program that receives federal funding.

“I have concerns about what’s really going to be provided,” Waggoner said.

“How much experience does Colton Boyles have with Title IX?” Corkill asked.

The board majority had no answer.