Nichols: Any investigation was unfair, but keep it hidden either way

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LARAMIE, WYOMING (Dec. 18, 2019) — Former University of Wyoming President Laurie Nichols does not want records related to her demotion released to the public, even as her attorney argues that the board of trustees could have violated university policy in its alleged investigation into her performance.

 

Posted Dec. 10, the most recent filing cast Nichols as pursued by media organizations that seek to violate her privacy in the wake of the board’s unexplained decision to demote her to a faculty member. It also holds out the possibility that Nichols has been unduly treated by the trustees, if they investigated her without informing her or seeking her response.

“Nichols doesn’t even know what the records say or why they were gathered,” Nichols’ attorney Megan Overmann Goetz wrote in the 26-page brief filed Tuesday, adding that Nichols “assumed the worst” in terms of what records were at stake. “Thus, any release would subject her to a potential trial and lynching.”

Goetz’s arguments were contradictory, said an attorney representing the media organizations that are suing the university for access to records related to the trustees’ surprise March decision not to renew the popular president’s contract.

“I’m assuming she’s saying a media trial and lynching,” the attorney, Bruce Moats, said. “That takes a dim view of the public in my mind. … Members of the public could in fact be very sympathetic to her and supportive of her if they think that these are bogus reasons [for her demotion] and that the board didn’t act as they should.”

Records lawsuit

WyoFile, the Casper Star-Tribune, the Wyoming Tribune Eagle and Laramie Boomerang filed a joint lawsuit in June after the university refused to release records related to the trustees’ decision. WyoFile and the Star-Tribune had filed several records requests seeking information about any investigations into Nichols’ performance or conduct.

In September, WyoFile and the Star-Tribune reported that the board of trustees had in fact quietly directed an outside law firm to investigate Nichols in the weeks leading up to the decision to demote her.

In several court filings since the September article was published, the university has not disputed that it investigated Nichols. Indeed, at an October hearing, attorneys for the university turned over more documents to the judge related to a request from WyoFile and the Star-Tribune for financial invoices stemming from the investigation.

 

In other filings, the university and Nichols have accused unauthorized people of leaking an invoice from the law firm that conducted the investigation, Employment Matters LLC Flynn Investigations Group. That invoice was obtained by WyoFile and the Star-Tribune and published in September.

The university has appeared to play coy in court filings with that same invoice, stating that investigation records like it may or may not exist.

“Any such invoice was not released by (the university) pursuant to any public records request,” the school’s attorneys wrote in early October. “No one with access to the University’s financial records has been authorized to release any such records to the Petitioners.”

Nichols appears to believe that the university has submitted investigative documents to the court, according to Tuesday’s filing.

“Nichols did not even know of the potential existence of such documents before this litigation,” Goetz, her attorney, wrote in Tuesday’s filing. She later added that Nichols learned that WyoFile and the Star-Tribune were seeking specific investigative documents in October and that “the University acknowledged that it would in fact be providing a second set of documents to the court” that matched the request.

In legal filings, interviews and through her attorneys, Nichols has for months denied that she was ever contacted by investigators or informed she was the subject of an investigation. She maintains she has no idea why her contract wasn’t renewed and that the board never provided any explanation. This week’s filing repeats those denials and argues Nichols’ right to privacy overrides any public interest in how the decision was made.

“While the Media, and frankly Nichols herself, may be interested in why the University ultimately chose not to renew her contract,” Goetz wrote, “that curiosity does not outweigh or override the personal privacy interests Nichols has for alleged investigatory records to be maintained confidentially.”

Nichols’ latest filing itself is an indication that the public needs access to information about how the trustees made their decision, Moats said.

“The filing here supports our contention that this is as much about how the UW board handled this matter as it is about Nichols,” he said. If Nichols is honest that she was never informed about the investigation or given a chance to respond, Moats added, “that really does focus the spotlight on the board and why they did what they did.

“It isn’t just curiosity,” Moats said, “for citizens to want to know how their only four-year university is being run.”

A student climbs steps into the center of the University of Wyoming campus on a crisp October day. (Andrew Graham/WyoFile)

In her filing Tuesday, Nichols’ attorney alleges that if the university investigated its former president, then it did so in violation of its own regulations.

While Goetz did not detail the exact regulations she was referencing, and did not respond to messages seeking clarification, she appears to be citing a policy instituted in 2016 by then-UW president Dick McGinity. That presidential directive outlines investigations relating to harassment, hostile environments and retaliation. It lays out the process for investigating university employees, including a requirement that the subject of an investigation — in this case, Nichols — will be given access to the complaint and report and will be able to respond to the allegations.

 

“Nichols was never notified of an investigation, interviews or any other undertaking about her or her performance as president of the university,” Goetz wrote to the court Tuesday. “If people were interviewed about Nichols, she does not know who or when or what was said. Certainly, Nichols was never given an opportunity to respond.”

On Wednesday, when asked about Goetz’s allegations that the board may have violated regulations, university attorney Robert Jarosh referred reporters to a previous filing, which denied that accusation.

“[UW] disagree[s] with any assertion that the non-renewal of Dr. Nichols’ contract or this Petition implicate UW regulations or due process issues related to Dr. Nichols,” that filing read.

Jarosh otherwise declined to comment on pending litigation, he wrote in an email.

Public vs. private interest

Nichols was not initially party to the lawsuit, which began with the news organizations suing UW after she had already left for a job in South Dakota. Nichols petitioned Albany County District Court Judge Tori Kricken to become a party to the lawsuit in October. Her petition came after the hearing where UW agreed to hand over documents related to an investigation by the Employment Matters LLC Flynn Investigations Group for the judge’s review.

Though it came just two weeks after the Star-Tribune and WyoFile published evidence of the investigation, Goetz argued that until the Oct. 8 hearing Nichols “did not have any information whatsoever to support that an investigation may have actually occurred.”

At that hearing, “Nichols learned for the first time that there may in fact be responsive documents in the custody of University to an alleged investigation involving her,” Goetz wrote in this week’s filing. Nichols requested an opportunity to see the records that have been turned over for the judge’s review, which Kricken denied on Nov. 20.

Now, Nichols has entered the lawsuit with the same goal as UW — stopping the release of the records that Goetz characterized as an invasion of Nichols’ privacy.

Even before Nichols entered the case, however, the university had maintained that Nichols’ right to privacy overrode the public’s right to understand the board of trustees’ decision, Moats said. Goetz agreed with the university’s assertion, calling Nichols a “private citizen” who would be significantly harmed by the release of any investigative records.

 

At the core of the media organizations’ lawsuit is the university’s use of an exemption to the Wyoming Public Records Act to protect information related to “personnel” matters. The outlets are arguing that exemption does not apply to a figure with as high a position as UW’s president.

“We’re asking about the conduct by a very high public official,” Moats said, “and the reaction to that conduct by very high appointed public officials.”