UW trustees preserve lawsuit appeal option as clock ticks

The University of Wyoming’s board of trustees voted Friday to preserve the right to appeal a judge’s ruling that the school must turn over records related to the end of former-president Laurie Nichols’ tenure.

Though the exact language of the resolution they passed authorizes the appeal, Chris Boswell, the university’s interim vice president for community affairs, said in an email it did not guarantee one. 

“It should be considered an action preserving the right to appeal,” he said.

The motion approves the “filings of any Notice of Appeal, in the Lee Publications Inc. matter.” Lee Enterprises owns the Star-Tribune, which — along with WyoFile and APG Media of the Rockies’ publications the Laramie Boomerang and the Wyoming Tribune Eagle — sued the university in June over the records.

Boswell added that a decision will be made between now and Feb. 2, which an Albany County judge set as a deadline to challenge her ruling. 

On Jan. 3, Judge Tori Kricken largely sided with the news organizations that sought public records the university had withheld last spring. Kricken ruled that the majority of the documents they sought, all related to Nichols’ dismissal, should be made public. 

In early January, the university’s spokesman and its attorneys said the ruling would likely be appealed but that the final decision was up to the board.

Bruce Moats, the attorney representing the news outlets, said the motion sounds like the board is “holding everything in place” while potentially leaving the final decision up to the university’s in-house counsel, Tara Evans.

“It does seem like that’s a decision that lies with the board,” he said. The university’s 12-person governing body may be considering “whether it’s prudent to spend taxpayer money further on this,” Moats said. 

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In a follow-up email, UW’s Boswell clarified that “the board would make the decision.” The “motion just leaves the window open to a decision either way,” Boswell wrote. 

Reactions at press conference

Gov. Mark Gordon didn’t know “what the trustees are considering or not considering,” he said on Friday. Gordon was questioned about the lawsuit and the trustees Friday during the governor’s annual press conference at the Wyoming Press Association gathering in Casper, where he touted his administration’s focus on transparency. 

“I’m on record saying I think this whole process could be handled better,” Gordon said. As governor, he has the power to appoint trustees to the board.

During Gordon’s press conference, a UW student asked him what he was going to do about the board.

“As students, we feel like the board of trustees sucks,” student journalist Kylee Harless said. “Our faculty and staff senate they’re literally putting a vote to say they have no trust in the board of trustees. If they’re doing that we have no trust in it. So how as governor are you going to help us because if we don’t trust our board of trustees, who’s going to run our university for us? And right now we’re in limbo and the university is an absolute mess because the board of trustees can’t get their crap together.”

Leaders of both the faculty and staff senate told reporters on Monday they did not believe any votes of no confidence in the trustees were forthcoming. In the months immediately following Nichols’ sudden demotion, there had been dissatisfaction with the trustees’ lack of transparency, but no such resolution was ever proposed, they said. 

In recent months, “I think we’re actually having some pretty good dialogue with the trustees,” faculty senate president Ken Chestek said. 

While Gordon didn’t outline an immediate course of action in response to the student’s inquiry, he responded that as governor, he had an important role to “lead by example.” He has been working to engage the campus community in situations where the board of trustees has, so far, failed to do so, he said. 

“The governor has a unique opportunity to put trustees on the board,” Gordon said. “I think the governor also has the opportunity to help lead an institution by example. I have tried to meet as often as I can with student senate and with faculty and with the trustees to try to get us back on a course where we’re really talking about the institution as a place where students want to go and be… I can help if you give me some suggestions on trustees, if you give me some ideas on what you think would be really important to emphasize.”

On Jan. 14, UW attorneys asked Kricken to see the extent of the redactions to aid in their appeal analysis, according to Moats. That request was approved, with neither Moats nor Nichols opposing it.

It’s unclear if Nichols is considering an appeal. In a radio interview shortly after the ruling was announced, she seemed to suggest that any appeal would come from the university.

If the university does appeal the decision, the case would go before the state’s Supreme Court. That would extend the timeline of the litigation by at least six months, Moats has previously said.

The lawsuit was filed in June, with the news outlets alleging that the records should be public and the school arguing that they were protected and couldn’t be released. The records were withheld after the Star-Tribune and WyoFile sent the university a number of public records requests seeking information related to Nichols, including documents about an investigation launched into her conduct in the days before the board announced in late March that she wouldn’t continue.

In a 55-page ruling, Kricken sided almost entirely with the news outlets. She ordered that a batch of documents, which she had reviewed and which were withheld by the university, be released to the news outlets, albeit with some redactions. Exemptions in public records law for personnel matters, she wrote, have to meet a high bar when applied to a public figure of Nichols’ stature — at the time in question the president of Wyoming’s flagship, publicly funded academic institution. 

Kricken placed the documents under seal, giving the university and Nichols — who joined the lawsuit late to add her voice to UW’s argument — 30 days to appeal.

The clock is ticking on that decision. At the time, the university and its attorneys told the Star-Tribune and WyoFile that the school was likely to appeal and was awaiting a board decision.

It’s unclear what exactly is included in the documents. In September, the Star-Tribune and WyoFile jointly reported that Nichols had been quietly investigated by a Denver-based law firm in February and March. The news outlets found that investigation concluded just days before the board’s top members interrupted Nichols’ vacation to tell her June 30 would be her last day as UW’s president.

After that story was published, the university turned over more documents — apparently related to the investigation — to the judge for review.

As the lawsuit plays out, the university and Nichols appear to be moving on. Nichols was promoted to permanent president of Black Hills State University, after serving on an interim basis for several months. UW is several months into its search for a replacement, with interim president Neil Theobald the only known applicant.

The records were requested between early April and late May. Should the university appeal, it will take the issue past the one-year mark and would likely continue into the tenure of UW’s new president.

Casper Star-Tribune staff writer Nick Reynolds contributed to this report.