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Macomber withdraws as North Idaho College attorney

by KAYE THORNBRUGH
Staff Writer | May 26, 2023 1:09 AM

COEUR d’ALENE — After a tumultuous, five-hour Wednesday night meeting where North Idaho College trustees reversed an earlier decision to hire new counsel, the college's interim legal counsel walked out.

NIC attorney Art Macomber announced during the meeting that he believes “laws are being broken or are in imminent peril of being broken by college personnel.”

“In this case, I have made the president and then the board of trustees aware of circumstances related to violations of portions of Title 6 of Idaho Code,” Macomber said. “I have given timely and appropriate advice about my concerns. That legal advice has not only been ignored, but attempts have been made to involve my NIC counsel position to further such wrongful acts to the detriment of NIC. In my view, such acts are morally and legally indefensible.”

Macomber did not specify what laws may be violated, citing client confidentiality. He then said he would withdraw as NIC’s legal counsel and promptly exited the Edminster Student Union Building where the meeting was held.

NIC confirmed Thursday that Macomber will “stay on in a limited capacity” until new legal counsel is found, with a resignation effective Aug. 15.

The board voted 3-2 last month to hire Bob Faucher, a senior partner with Boise-based firm Holland and Hart, who was recommended for hire as NIC’s new attorney by college President Nick Swayne.

This week, trustees Greg McKenzie, Todd Banducci and Mike Waggoner balked at the firm’s fees, which were not provided to the board ahead of the April meeting. Rates for Holland and Hart’s services range from $255 per hour to $765 per hour, depending on which attorney does the work.

Trustees Brad Corkill and Tarie Zimmerman said they’re comfortable with hiring the new firm.

“I really like the team approach,” Zimmerman said. “I love that we have areas of expertise. The fee agreement is graduating depending on the expertise we need at the time. This is a good move.”

Last month, McKenzie cast the tie-breaking vote to hire Holland and Hart. But he reversed course Wednesday night, citing unease about potential fees and terms.

“For today, I believe it’s in NIC’s best interest to halt this lawyer transfer tonight,” McKenzie said.

NIC’s legal bills have been a matter of contention since December, when the board hired Macomber at a rate of $325 per hour, a 62.5% increase over the previous attorney’s hourly rate. Over the last six months, Macomber’s monthly invoices have totaled more than $20,000 multiple times.

The bills have been significantly higher than those from NIC’s previous legal counsel, Lyons O’Dowd, for the same timeframe. Between December 2021 and July 2022, most of Lyons O'Dowd's monthly invoices were for totals under $10,000.

Banducci said it’s unfair to hold trustees responsible for litigation sparked by their decisions because the trustees themselves have not sued the college.

He said those who sue NIC are to blame for the college’s hefty legal bills, which have overextended NIC’s budget. He suggested that suing the college “undermines” the voters who elected the trustees.

“I personally have been elected three times, so y’all haven’t beat me yet,” Banducci said. “And so, when there’s a majority who make decisions, you go after them and you attack them … That’s not the way you go about it. What you do is go through the process. If not, it becomes, ‘Well, if we get a judge who works for us, I can sue you or I can work through an external agency by weaponizing the (Idaho State Board of Education) or the governor’s office or the accreditation or whatever.’ Those are not how this is supposed to be done.”

Only two attorneys responded to NIC’s last call for firms to submit qualifications for consideration to provide the college with legal services, Swayne said.

One of the applicants was reportedly Marc Lyons, NIC’s legal counsel for 23 years before resigning last fall due to tensions surrounding the board of trustees. Lyons later withdrew from the process.

The other applicant, McKenzie said, was D. Colton Boyles, a Sandpoint-based attorney who filed to run for Idaho Attorney General in 2022, but then dropped out and endorsed Raul Labrador. Art Macomber was also seeking the Republican nomination for Idaho Attorney General in 2022. Labrador beat Macomber and incumbent Lawrence Wasden in the Republican primary and went on to win the general election in November.

Boyles’ website indicates that he represents clients for a range of matters, including criminal and constitutional law, civil rights, defamation, labor and employment, personal injury, vaccine exemptions and “child protection services investigation defense.”

Swayne expressed concerns about Boyles’ qualifications. In his absence between December and early March, Swayne said Interim President Greg South “recommended strongly against” pursuing Boyles as legal counsel.

“I cannot emphasize enough, the gentleman does not have the experience,” Swayne said.

Boyles was one of five Republican attorneys nominated by members of the Kootenai County Republican Central Committee to replace former prosecuting attorney Barry McHugh, who resigned last year in order to become a judge.

County commissioners did not consider Boyles for the office, however, because he did not receive enough votes from the central committee to become a finalist.

Boyles represented former Idaho Lt. Gov. Janice McGeachin when the Idaho Press Club successfully sued her for improperly denying public records requests.

A judge fined McGeachin in 2021 for her “bad faith” violations of the Idaho Public Records Act and ordered her to pay the Idaho Press Club’s attorney fees and costs.

“The fact that respondent found counsel that was willing to advance frivolous arguments and positions does not make respondent’s reliance thereon reasonable,” the judge wrote.

McKenzie insisted upon interviewing Boyles for the job. The board ultimately agreed to put out another request for qualifications for legal services, which will close June 2.

Trustees also tabled a vote on the budget for fiscal year 2024, putting off the decision until at least early June.

The $53.4 million budget does not include a property tax increase, nor does it include a hike in student tuition. About $2.4 million is budgeted for changes in employee compensation, which includes some funds from the state and is the equivalent of an 8% compensation increase for full-time and part-time employees.

McKenzie, Banducci and Waggoner cited nonspecified concerns as their reason for delaying the budget’s approval.

“I have some concerns I have not adequately addressed yet,” Banducci said. “I wouldn’t mind buying some more time.”

Sarah Garcia, NIC’s vice president of finance and business, said Thursday that she didn’t know why the board chose to table the budget.

“There were no questions asked of me by the board that had not been answered prior to the meeting,” Garcia told The Press via email.

The college’s usual timeline for the budget is a first reading in April, which occurred at last month’s regular meeting, followed by a second reading and approval in May.

Idaho’s fiscal year runs from July 1 through June 30.

The next regular meeting of the board of trustees is scheduled for June 7.