Swayne wins public records lawsuit
NIC President Nick Swayne
COEUR d’ALENE — A judge has ordered North Idaho College to allow college president Nick Swayne to see an investigative report that has been at the center of debate on the board of trustees.
In a written decision filed late Wednesday, First District Judge Barry McHugh found that the report is a public record and not exempt from disclosure to Swayne.
College trustees were expected to take action on the report’s contents, which are not publicly known, at the monthly board meeting Wednesday night, but the meeting was canceled due to weather. The meeting has been rescheduled for Wednesday, Jan. 24.
It’s unclear whether Swayne will see the report before trustees convene again.
Though the court ordered NIC to make the report available to Swayne for copy and inspection, NIC is permitted to redact “any portions of the report that pertains to allegations against individuals other than Swayne and not against Swayne” and did not specify a deadline or time frame for the college to do so.
In June, NIC trustees hired Spokane-based law 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.
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.”
NIC provided the investigative report to the court under seal for review. McHugh’s decision indicates the document is a summary report of an investigation completed by attorney Jenaé Ball regarding a former college employee’s “whistleblower” allegations of “retaliatory treatment and retaliatory discharge (in the form of constructive discharge) by Swayne.”
The report examined 13 separate allegations, according to court records. Five allegations were against Swayne alone, four were against Swayne and at least one other NIC employee and the remaining four were against NIC employees other than Swayne.
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 initially sought a copy of the completed report under previously agreed-upon conditions, which included password protection and watermarks on the report, according to court records.
After NIC refused to provide the report, Swayne then sought a copy via a public record request, 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.”
In Idaho, the sole recourse for a person “aggrieved by the denial” of a public record is to petition the court to compel the document’s release. Swayne did that in November.
The court determined that attorney-client privilege does not apply because NIC hired Ball, the investigator, to conduct a workplace investigation, not to provide legal advice.
“Further, the report did not impart legal advice but merely stated whether, in Ms. Ball’s opinion, the allegations were substantiated or unsubstantiated,” McHugh wrote in the decision. “Additionally, the court considers Ms. Ball’s statement that she requested to be allowed to provide a copy of the report to legal counsel for Swayne and the complaining employee ‘for the purposes of full transparency’ to be evidence that the report was not a confidential communication intended to be covered by attorney-client privilege.”
McHugh ruled Swayne is entitled to an award of attorney’s fees and costs in instances when NIC’s failure to disclose the requested records was frivolous, meaning “not supported in fact or warranted under existing law.”
In this case, the court found four out of NIC’s six arguments to be frivolous.