Details emerge in NIC records suit

COEUR d’ALENE — Court filings have revealed details about the undisclosed personnel investigation at the center of debate on the North Idaho College board of trustees and a public records lawsuit.

The lawsuit, filed in November by NIC President Nick Swayne, contends the college violated Idaho’s public record laws by denying his request for a copy of an investigative report that involves allegations against him by another NIC employee.

A hearing is scheduled for Friday, when a judge will consider Swayne’s request to compel the college to turn over the report.

In June, NIC trustees voted to authorize hiring a third-party investigator for an undisclosed personnel matter. NIC paid $56,013 to Spokane-based firm Randall Danskin to investigate the personnel matter and produce a report, according to the college.

Though the board received the finished report Oct. 13, trustees have yet to take action on its contents.

Attorney Jenae Ball reviewed documents and interviewed “many witnesses” in order to complete the investigation, court records say. Swayne was among those interviewed.

“I was asked questions about whether certain events actually occurred, including meetings, conversations, as well as my reasons for making certain operational decisions,” Swayne said in a declaration filed with the court. “I also provided documentary evidence of meetings at the request of the investigator.”

Swayne said he understood the investigation involved allegations made against him by another employee, based on the questions he was asked and statements about the investigation in his performance evaluation.

Trustees Greg McKenzie and Mike Waggoner met with Swayne and the college’s interim HR director Oct. 23 for Swayne’s performance evaluation. In this meeting, Swayne reportedly received a written copy of his evaluation, which is not yet complete.

Swayne said the evaluation contained “numerous references” to the report. A heavily redacted portion of the evaluation was filed as an exhibit in the lawsuit.

“One of the president’s staff has complained about threatening behavior and the allegations are being investigated,” the document said in part. “Staff and faculty are afraid to speak out. The board is hearing reports of threatening and intimidating behavior by the president in the president’s council and a threatened lawsuit is being investigated by an independent investigator hired by the board.”

The document said an employee, whose name was redacted, “submitted a verbose complaint” that led the board to hire an investigator to look into the matter.

“I have not had the opportunity to first review the contents and conclusions of the investigative report to respond to the negative remarks made in my evaluation,” Swayne said.

The college has argued in court filings that the report was meant to be a “privileged, confidential communication” between the investigator and NIC.

“NIC never intended that any document generated by Ms. Ball would be subject to public disclosure,” board chair Mike Waggoner said in a declaration filed with the court.

Swayne said he initially sought a copy of the report under previously agreed-upon conditions, including “password protecting and watermarking the document with the names of each of the recipients to prevent disclosure.”

But NIC allegedly refused to provide the report.

Swayne then sought a copy of the report via public record request, court records show, citing multiple subsections of the public record statute.

Under Idaho law, a person may inspect documents from an investigative file “to which he or she is a named party” if such documents are not otherwise legally prohibited from disclosure.

Public officials or authorized representatives may inspect and copy their own personnel records, except for material used to screen and test for employment. A person may also inspect and copy the records of a public agency pertaining to that person, even if the record is otherwise exempt from public disclosure.

The college denied Swayne’s public record request on the grounds that the report is “attorney-client privileged; and/or work product; and/or a personnel record not subject to disclosure.”

Attorneys representing NIC in the case contend that Swayne “cannot know whether the report is exempt from disclosure because he has never received a copy, has never reviewed the report and does not know its contents.”

The court compelling NIC to provide Swayne with the report would “erode one of the most sacrosanct principles of the American legal system,” referring to attorney-client privilege, and have “disastrous consequences,” the college argues.

“Should this occur, any public individual, not merely (Swayne), could request a copy of the report,” attorneys for NIC said in a filing.

Because trustees hired Ball to investigate after the college received “correspondence from an attorney threatening possible litigation,” NIC’s attorneys say the resulting report qualifies as a “work product” and should be shielded from disclosure.

Legal counsel representing Swayne argue that NIC has already waived attorney-client privilege by “selectively revealing” portions of the investigation and report via Swayne’s performance evaluation.

“NIC is seeking to use the report only as it sees fit, disclosing only minimal parts of the report while keeping the rest hidden,” Swayne’s counsel said in a filing. “Moreover, NIC is using the contents of the report as a basis to give Dr. Swayne a poor evaluation. ... Fairness requires that if NIC is going to use the report against Dr. Swayne and has disclosed portions of its contents, that the entirety of the report should be disclosed.”

All five trustees completed the performance evaluation and provided Swayne with a rating between 1.0 and 5.0, according to court records. A graph included with the evaluation shows that two board members rated Swayne at “4.0 or higher,” while three trustees provided Swayne with an average rating “below 2.0.” The graph doesn’t indicate which trustee gave which rating.

    Waggoner
  

    McKenzie