Trustees quietly investigated Nichols before dismissal
September 26, 2019
An outside law firm quietly investigated former University of Wyoming President Laurie Nichols at the direction of the university’s board of trustees in the weeks before she was informed she wouldn’t continue as the school’s chief executive, an investigation by the Star-Tribune and WyoFile found.
The board-directed inquiry was specifically into Nichols’ conduct, two sources who were contacted as part of the investigation said. One of those sources later confirmed that the inquiry focused on the nature of Nichols’ interactions with people. A third source who spoke to WyoFile and the Star-Tribune was also contacted and questioned about Nichols, though that person could not definitively confirm Nichols was the subject of the investigation.
The news of the investigation is the first credible information about the process or decision making leading to Nichols’ dismissal to be revealed publicly since the university announced it in March. The board has refused to comment, Nichols herself has said the board never provided her an explanation, and the university’s general counsel has refused to fulfill numerous public records requests related to the matter.
The vacuum of information has sparked public frustration, rampant speculation and opened the board to widespread criticism, including accusations of sexism. The Star-Tribune, WyoFile, the Wyoming Tribune Eagle and the Laramie Boomerang together filed a lawsuit earlier this year over public records that are related to the investigation and have been withheld. That suit is ongoing.
The sources and documents reviewed by the Star-Tribune and WyoFile indicate that the board moved quickly and quietly to initiate and conclude the investigation. Indeed, the investigating firm had a final document review and teleconference on March 13 — two days before the board’s four executive committee members flew out to Arizona, where Nichols was vacationing, to inform her that she would not be continuing as president.
The documents also suggest the law firm was present on two of the board’s confidential conference calls leading up to the decision on Nichols and the flight to Arizona.
The news of her imminent departure shocked the campus. None had expected her to leave. Nichols herself was emotional when she addressed the Faculty Senate in the days after the news broke. Nichols had come to the university amid a significant budget crisis, a situation further exacerbated by a projection that enrollment would crater. In her three years, she had steered the university through the budget fiasco and turned enrollment around completely. Her tenure was marked — and is still lauded today — for her engagement with Wyoming’s tribes and with the Black 14. The news that she would not continue “came out of a clear blue Wyoming sky,” then-Faculty Senate chair Donal O’Toole said.
Nichols, who is now the interim president at Black Hills State University, has consistently maintained that she has no idea why her contract was not renewed. In a June interview, she told the Star-Tribune that she was not investigated.
In response to a list of questions sent through her attorney, Nichols on Wednesday denied being aware of any investigation and maintained that she still does not know why the board let her contract expire.
“President Nichols is unaware of any personnel investigation undertaken,” her Casper-based attorney John Masterson wrote.
The board has steadfastly refused to provide any details about why they chose not to renew Nichols’ contract. Asked in May if the board ordered an investigation into Nichols, board chairman Dave True said he couldn’t comment and expressed frustration at the repeated questions about the then-president.
Approached outside of a meeting in Casper on Wednesday, True again declined to comment.
“I just don’t feel like I can, legally,” he said, “and secondly, I don’t think it’s fair to people involved.”
Asked who those people were, True said “lots of people.”
In an email to reporters Wednesday afternoon, UW spokesman Chad Baldwin wrote that the “university does not comment on personnel matters or matters concerning pending litigation.”
An invoice, obtained by the Star-Tribune and WyoFile, indicates that the university trustees paid $8,550 to Employment Matters LLC Flynn Investigations Group to interview at least 14 people in the weeks and days before the board notified Nichols on March 15 that she wouldn’t continue as president.
The Star-Tribune and WyoFile contacted several people believed to have been interviewed as part of the investigation. Three confirmed the nature of the investigation. Of those who declined to speak to the outlets, none denied they were contacted. Others broke off contact with reporters after learning of the reporters’ questions.
The invoice and other employment records obtained by the Star-Tribune and WyoFile indicate the Denver-based law firm was hired last year and investigated a different UW employee through the fall of 2018 and into January 2019. The firm specializes in investigating suspected “discrimination, harassment, retaliation and compliance concerns,” according to its website.
After completing its first investigation in January, the firm resumed billing for the latter investigation into Nichols on Feb. 18.
Based on a billing invoice dated March 18, the firm interviewed at least 14 people, identified using only initials. None of the initials match Nichols’. Other interviews are itemized on the invoice, but not paired with initials.
The invoice also includes charges for several hours of work that appear to indicate the law firm’s staff participated in a pair of conference calls with the board of trustees during which previous reporting suggests the board decided not to renew Nichols’ contract, which expired June 30. At that point, she planned to become a faculty member but instead left the university in June for Black Hills State.
On March 5, the firm billed for two hours and 45 minutes spent on “notes review” and an “Exec Committee Call.” There is no public record — no posting of a meeting date or record of meeting minutes — that the board of trustee’s executive committee, which consists of True, Jeff Marsh, John McKinley and Kermit Brown, met on March 5.
On March 7, however, the board’s deputy secretary emailed the trustees to inform them “of the need to schedule a ‘Special’ Board of Trustees meeting conference call … for the purpose of discussion of Personnel” on March 11, and requested confirmation of participation from the trustees, according to copies of the emails obtained through a records request.
The firm listed four hours and 45 minutes for prep and a “Board conference call” on March 11. Meeting notices and minutes posted online by the UW board of trustees show the board spent a little more than two hours in a confidential executive session conference call that day. Attendees listed in the minutes include an unidentified “third party.”
On March 13, the law firm also listed two and a half hours spent on “document review” and another teleconference. Minutes posted online by the board of trustees document another hour and a half executive session conference call attended again by an unidentified third party on that day. Following the executive session, the board took a vaguely worded public vote. With one trustee absent, the board voted 10 to 1 to “proceed as discussed in Executive Session.”
Two days later, the board officers flew to Arizona and met with Nichols.
Employment Matters LLC Flynn Investigations Group’s website offers two sets of services to institutions conducting investigations into workplace conduct — both investigations and legal representation. Employment Matters LLC provides “legal advice and representation to its clients,” according to the website, while Flynn Investigations Group is “recognized as a separate entity to demonstrate attention and dedication to the unique role of neutral investigator.”
An August 2018 agreement between the firm and UW general counsel Tara Evans was also obtained by WyoFile and the Star-Tribune. The vague “engagement agreement” says the firm was hired to “conduct a workplace investigation,” without specifics about what or who was to be investigated. “The investigator will develop a record of allegations and relevant evidence to enable UW with support of its legal counsel to make informed decisions regarding the circumstance,” the agreement said, “including potential remedial action.”
Two earlier invoices document the firm’s work on its first investigation, from September 2018 through January 2019. The invoices do not name interview subjects or investigation subjects and again use only initials. But the chief set of initials in the firm’s first investigation — MAG — correspond to a previous employment spat at UW.
That fall, UW Foundation employee Mary Ann Garman accused the foundation’s president, Ben Blalock, of retaliating against her by placing her on administrative leave after she gave a deposition in a lawsuit against Blalock. In a brief phone interview, Garman’s attorney Mitch Edwards confirmed that Employment Matters LLC Flynn Investigations Group was involved in that matter. He declined to characterize the firm’s involvement.
The single document UW provided in response to a records request from WyoFile and the Star-Tribune last month is called an Employee/Independent Contractor Determination Worksheet. It includes the date “services will be provided,” which does not include the February through March period in which the investigation of Nichols was conducted. The worksheet specifically indicates UW has no “continuous” relationship with the firm.
It’s unclear at this point, given UW’s refusal to provide or acknowledge the existence of several requested records, if a subsequent worksheet was completed for the second investigation in February and March.
There is another notable difference between the two investigations. The MAG investigation from September 2018 through January 2019 was billed to Evans, UW’s general counsel. The alleged investigation of Nichols, however, was billed directly to True and the University of Wyoming board of trustees. The invoice is addressed to a Casper P.O. box that is listed as the mailing address for True’s various energy industry companies.
It remains unclear at this point who paid the law firm for its latter work.
The exact details of what prompted the investigation by Flynn also remain unclear. The sources who spoke to the Star-Tribune and WyoFile would not, or could not, characterize on the record what exactly led to the inquiry.
Frank Mendicino II, who sits on the board of the UW Foundation, told a reporter in the spring that there was an interaction between Nichols and an employee at the foundation that caused the employee to leave the foundation and may have led to a complaint being filed. Mendicino said he wasn’t present at the time and that he had received the information secondhand.
He described the interaction between the two as a “brouhaha.”
That employee repeatedly declined to speak to the Star-Tribune and WyoFile. In June, Nichols expressly denied that she had any incident with that employee.
Masterson, Nichols’ attorney, wrote to the Star-Tribune and WyoFile on Wednesday that Nichols “is unaware of any complaint or report made against her. She has no knowledge of any alleged conduct or interaction which may have been perceived negatively.”
The employee left the university in February, and the invoice from Flynn indicates the firm’s services began Feb. 18.
By March 12, the board’s leaders were already planning to talk to Nichols. In an email obtained via a public records request, True wrote to the other board officers — Marsh, McKinley and Brown — to plan their flight to Arizona.
True, in this initial email, planned to spend roughly two hours in Arizona meeting with Nichols. He suggested meeting with her in the airport.
Publicly available records show the trustees’ private plane was on the ground in Arizona for roughly an hour and a half. The total cost of the flight was $9,100.
True has declined to discuss that email or the flight in general. Nichols confirmed in June that she was informed by the board during her vacation in mid-March that she would not continue as president.
In another email, sent March 25 — a few hours after the campus and the rest of the state was publicly notified that Nichols’ contract would not be renewed — trustee Dick Scarlett says he had received two calls that day about the Nichols decision.
Those first two calls to Scarlett wouldn’t be the last. The board has fielded other calls for an explanation on what happened with Nichols, documents show. But the board maintained its silence. In interviews and in court filings, the board and university have refused to acknowledge that an investigation into their former president occurred.
The upheaval — and silence — surrounding the Nichols’ decision has led to significant consternation at the university. In the weeks after the news that Nichols would not continue became public, the student government proposed two resolutions: one praising Nichols and another criticizing the board and calling for trustees to be elected, rather than appointed. The latter resolution failed.
O’Toole, the outgoing chair of the Faculty Senate, asked the trustees at a board meeting in the spring if their decision was motivated by sexism. Others on campus asked the same question, privately and to reporters. More people wondered who would be willing to take the UW presidential job in such an environment. Whoever takes the job will be the fifth person to hold the office in seven years, not counting interim president Neil Theobald, who is scheduled to hold the office until at least July 2020.
The upheaval has continued into the new academic semester. Earlier this month, Gov. Mark Gordon issued a letter to the board encouraging them to undertake a thorough and transparent presidential search, one that avoids rubber-stamping a “familiar face.” Gordon wrote that there was no wonder some thought the university was adrift and worried over the “black eyes” caused to the school by the Nichols decision and the Bob Sternberg debacle.
Then, last week, the board quietly accepted the resignation of vice president Sean Blackburn. The move was barely acknowledged in a press release announcing his successor.
A former trustee who spoke to a reporter amid that upheaval laughed repeatedly, more out of disbelief than humor.
“There’s something the matter with the university,” the former trustee said, “and I’m not saying it’s unique to the board of trustees. … There’s something unhealthy.”