Tuesday, June 18, 2024

Judge considers Swayne’s public record lawsuit

Staff Writer | December 30, 2023 1:08 AM

COEUR d’ALENE — District Judge Barry McHugh will consider whether to compel North Idaho College to turn over an investigative report to college president Nick Swayne.

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

After hearing arguments from legal counsel for Swayne and NIC, McHugh indicated in court Friday that he’ll take the matter under advisement and issue a written ruling at a later date.

In June, NIC trustees hired Spokane-based firm Randall Danskin to investigate an undisclosed personnel matter and produce a report, according to the college. The board received the finished report Oct. 13, but trustees have yet to take action on its contents.

Court filings indicate the investigation was prompted by a “verbose complaint” from an employee involving reports of “threatening and intimidating behavior by the president in the president’s council.”

Multiple sources have indicated to The Press that the employee who submitted the complaint is Laura Rumpler, NIC’s former chief communications and government relations officer. Rumpler resigned from her position in September.

Swayne said he initially sought a copy of the completed investigative report under previously agreed-upon conditions, including password protection and watermarks on the report.

NIC reportedly refused to provide it.

Swayne then sought a copy of the report via public record request, court records show, citing multiple subsections of Idaho law that allow for public officials to inspect and copy their own personnel records or records pertaining to them, with some exceptions.

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.”

Legal counsel for Swayne cast doubt on NIC’s argument.

“It is puzzling to me that NIC can advance that argument while also admitting they had conditions for turning it over in the first place,” said attorney Tara Malek. “If it was work product (prepared) in anticipation of litigation, why would NIC be willing to turn it over?”

Kelly Drew, a Spokane-based attorney assigned to the case by NIC’s insurance carrier, argued in court Friday that the report is privileged and exempt from disclosure, even to the college employees at the center of it.

“It is irrefutably a communication between an attorney and client,” Drew said.

In late October, Swayne met with NIC trustees Greg McKenzie and Mike Waggoner for his performance evaluation. Court filings show the written evaluation contains references to the report.

Malek said Swayne was meant to have an opportunity to provide feedback and request corrections to his performance evaluation but is unable to do so without seeing the report.

“If the evaluation contained conclusions from the report but Dr. Swayne was not provided a copy of the report to understand how that conclusion was reached, how would he defend against the allegation at that time?” McHugh asked NIC’s legal counsel.

“Well, he can always defend against the allegations by explaining his truth and by explaining what he believes to be true,” Drew replied.

    Kelly Drew, representing NIC