AG criticized university system for spending ‘inordinate amount of time’ avoiding transparency

By Rob Port | Watchdog.org North Dakota Bureau

BISMARCK, N.D. — North Dakota’s higher education officials seem to have a problem with the state’s open meetings and open records law.

A legal opinion issued last week by Attorney General Wayne Stenehjem blasted the North Dakota State Board of Higher Education for violating the law at least 18 times since 2010.

The legal opinion was requested by Watchdog.org.

“I am concerned with the SBHE’s continual attempts to dismiss the duty to follow the statutory requirements of the open meetings law,” Stenehjem wrote Friday in his opinion.

“It appears that the repeated warnings and opinions issued by this office finding the SBHE to be in violation of the law and even training provided by this office to the SBHE and its legal staff, are not enough to make the SBHE follow its duties under the open meeting law.”

The latest opinion dealt with a State Board of Higher Education meeting on July 30-31. During one part of the retreat, board President Kirsten Diederich told the audience to leave the room so the board could speak privately with a consultant. Stenehjem said that request violated open meetings law, even though Diederich told the audience they could stay if they wished.

It “is unlikely the people attending the meeting felt they had a real choice to stay when the president of the SBHE requested they leave the meeting,” Stenehjem wrote.

“A suggestion or request by a governing body that a person leave a meeting has a chilling effect on a person’s right to attend the meeting and is a violation of the open meetings law.”

North Dakota University System officials had claimed previously they never intended to keep the meeting a secret, but a compliance officer notified of her impending termination said she’s being fired in part because she allegedly tipped off Watchdog.org about the meeting.

Kirsten Franzen is one of two of the university system’s top compliance officers placed on leave earlier this month pending termination. In a letter to NDUS Chief of Staff Murray Sagsveen, Franzen disputes allegations she told Watchdog.org about the July Higher Education board meeting.

“I have told you repeatedly that I was not involved in Rob Port making a complaint,” Franzen wrote. “Moreover, I should not be retaliated against for imagined conduct that you are unable to substantiate.”

Franzen had no communication with Watchdog.org prior to being placed on leave.

Stenehjem has ordered the State Board of Higher Education to modify its meeting minutes to include discussion that took place after the audience was asked to leave the July meeting. He also told the University System to make public an audio recording of the discussion.

He also criticized university officials for spending too much time trying to avoid transparency.

“The SBHE often seems to devote an inordinate amount of time creating unsupportable legal arguments to justify violations of the open records and meetings law after the fact,” he wrote. “Devoting the same efforts to assure compliance before violations occur could go a long way to avoid these unnecessary and embarrassing incidents in the future.”