Idaho
New revelations, new wrinkles in Idaho Supreme Court hearing on Phoenix sale • Idaho Capital Sun
This story was originally posted on IdahoEdNews.org on June 13, 2024.
(UPDATED, 3:56 p.m., with comment from Trudy Fouser, the State Board’s lead attorney.)
An Idaho Supreme Court justice Thursday floated a new and confounding question about the proposed University of Phoenix acquisition: Did the State Board of Education pay $1.5 million for consulting before greenlighting the deal?
State Board officials were quick to say they never paid for due diligence work, which would have been covered through tax dollars.
The due diligence question came up during oral arguments, as the Supreme Court took up an open meetings lawsuit against the State Board. Attorney General Raúl Labrador has argued that the board broke state law when it held three closed-door meetings to discuss the University of Idaho’s $685 million plan to purchase Phoenix. The State Board gave the purchase the go-ahead in an open meeting on May 18, 2023.
Labrador’s lawsuit — rejected in an Ada County district court — has nonetheless thrown a monkey wrench into the bid for Phoenix, a giant for-profit online university serving some 85,000 students nationally. And if the Supreme Court sides with Labrador and against the State Board such a decision would further imperil the deal.
The Supreme Court took the case under advisement after a 70-minute hearing. It’s unclear when the court will rule.
Did the Idaho State Board of Education pay for due diligence?
It sounded that way, at least in Thursday’s hearing.
During a line of questions, Supreme Court Justice Gregory Moeller clearly suggested that the State Board had spent $1.5 million on due diligence. And he said the spending indicated that the Phoenix talks had progressed beyond the “preliminary negotiations” that can be held in a closed meeting.
Moeller’s questions also seemed to draw a distinction between the State Board’s due diligence and the U of I’s consulting contracts, which have been a matter of public record for months. The U of I has spent roughly $11 million on Phoenix-related consulting — and as Idaho Education News reported in February, $7.3 million of this work went to U of I President C. Scott Green’s former employer, Hogan Lovells, an international law firm.
So did the State Board spend $1.5 million?
During Thursday’s hearing, the State Board’s outside attorney did not dispute Moeller’s claim, and said the magnitude of the Phoenix deal justified due diligence.
“(It’s) not an unreasonable action,” Stephen Adams said.
When State Board spokesman Mike Keckler was reached for comment Thursday morning, he questioned Moeller’s version of the facts.
“Neither the board nor the board office spent funding on due diligence,” Keckler said in an email. “Given that we are in a board meeting today we weren’t able to listen to this morning’s oral arguments, so we can’t comment any further on Justice Moeller’s line of questions.”
The board has been meeting in Pocatello since Tuesday for a previously scheduled meeting running through today. No board member or State Board staff member attended Thursday’s Supreme Court hearing.
The lead attorney representing the State Board, which operates as the U of I’s governing board of regents, corroborated Keckler’s account. In an email Thursday afternoon, Trudy Fouser said the board never paid for consulting or due diligence.
Familiar — and less familiar — legal arguments
Thursday’s legal arguments revolved around two snippets in the open meetings law, pertaining to the negotiations process and competition.
The State Board justified its closed meetings under a little-used piece of the law, covering “preliminary negotiations … in which the governing body is in competition with governing bodies in other states or nations.”
Negotiations. Chief Justice Richard Bevan seemed to set the tone for Thursday’s hearing with the court’s first question to Joshua Turner, Labrador’s constitutional litigation and policy chief: “When do preliminary negotiations cease and final negotiations begin?”
For much of the hearing, the justices grilled Turner and Adams about this question. Not surprisingly, the two attorneys saw the issue differently.
Turner argued that the preliminary talks end — and the public debate must begin — when there is an offer on the table. And Turner suggested that this must have happened sometime during the board closed meetings, in March, April and May 2023.
Adams said preliminary negotiations don’t end with an offer; they end when the parties begin work on a contract. And he said the preliminary phase ended with the State Board’s open meeting on May 18, 2023; that’s when the board agreed to pursue a contract, setting a $685 million purchase price.
Competition. This was the centerpiece in the Ada County trial in January, when District Judge Jason Scott ruled in the State Board’s favor. Scott said board members had reason to believe the U of I was vying against other public suitors, such as the University of Arkansas. (However, Arkansas’ board of trustees voted down a Phoenix purchase in April 2023, almost a month before the State Board endorsed a U of I-Phoenix affiliation.)
But this turned out to be a secondary issue Thursday, as the court and the competing attorneys spent relatively little time discussing competition.
Adams defended State Board members, saying they worked diligently to make sure their closed meetings were legal. And he said everything the board heard in private confirmed the U of I was in the middle of a competitive bidding process.
Meanwhile, Turner took a jab at Scott. By focusing on whether board members had reason to believe the U of I faced competition — rather than proof of actual competition — Scott used a subjective measure. As a result, Turner said, Labrador’s team had no choice but to spend hours deposing individual board members for their read on the market for Phoenix.
Transparency vs. competitive advantage
The State Board’s May 2023 vote blindsided Idahoans who knew nothing about a potential Phoenix purchase, Turner said. And that preempted the process the open meetings law is designed to protect. “The public wants to be able to enter the conversation and have a seat at the table.”
In response, Adams said the board was not trying to shut out the public. Instead, he said, the board was working “to get the best deal possible for the people of the state of Idaho.”
On Thursday, the court publicly wrestled with this question of balance.
Justice Colleen Zahn said the Legislature made its objectives known, with a law designed to allow the government to negotiate behind closed doors. “It’s clearly got to be to provide the state a competitive advantage.”
Moeller acknowledged that closed-door negotiations are a great way to run a private business. “The debate I’m having internally is, is this a good way to run a state?”
The case, in broader context
The case before the Supreme Court is legally narrow: an open meetings dispute.
Its implications run deeper.
Labrador’s lawsuit, filed nearly a year ago, has prevented the U of I from financing a Phoenix purchase. The Supreme Court appeal has also kept bonding on hold.
As long as the lawsuit is active — and on Thursday, justices floated the possibility of kicking the case back to district court for another hearing — the Phoenix purchase remains in limbo.
And as EdNews first reported in May, Phoenix’s owner, Apollo Global Management, has said it now wants to talk with other prospective buyers. The U of I could receive “breakup fees” from Apollo if its Phoenix purchase falls through.
More reading: Click here for more in-depth, exclusive Phoenix coverage from Idaho Education News.
Idaho
Southwest Idaho Health District votes to remove the Covid-19 vaccine
NAMPA, Idaho — In October, the Southwest Idaho Health District voted 4-3 to remove the COVID-19 vaccines from its facilities. So, what does this mean to the residents in their six-county district?
- Southwest Idaho Health District votes to remove COVID-19 vaccines.
- Board Chair Kelly Aberasturi explains his view on vote.
(Below is the transcript from the broadcast story)
Owyhee County Commissioner Kelly Aberasturi was one of the three who voted to continue providing vaccines because he feels taking the shot or not is an individual choice, and that the District shouldn’t get in the way of that. “I voted against it but not that I believe in the shot but because I believe it’s individual rights who can make their own decision.”
I asked Aberasturi what the discussion was like before they took the vote. “A couple of the commissioners are pretty conservative, and they just didn’t think that they should be giving out a vaccine that has negative effects on some certain individuals.”
To be clear, the CDC recommends everyone over six months get an updated COVID-19 vaccines and emphasizes they are safe. So where can you go to get one if you are in the Southwest District? I reached out to the Central District Health and they told me anyone can visit their Boise clinic by scheduling an appointment for their immunizations — no matter where they live or work. They accept most insurance and have options for those under-insured or uninsured. They won’t turn anyone away based on where they live.
The F.D.A.’s top vaccine official urges everyone eligible to get immunized.
Idaho
Obituary for Alton Herman Erickson at Eckersell Funeral Home
Idaho
Bruins’ Cronin Expresses Blunt Thoughts on Win Over Idaho State
The UCLA Bruins (4-1) have continued their hot hand on home court this season, staying undefeated at Pauley Pavilion with an 84-70 win over Idaho State on Wednesday night.
Coach Mick Cronin spoke postgame and was quite pleased with the majority of the game but not how his team finished.
“I thought for 30 minutes we played great, then we got up 28 and a bunch of guys were selfish,” Cronin said. “Their mind wasn’t on defense, just try to get a steal, get a layup, go down the other end, try to get mine. We became everything I despise in the last 10 minutes, but the first 30 minutes we were great.”
The Bruins likely should have won this game by way more than 14 points, but a lackluster performance down the stretch led to a much closer ballgame than projected. Cronin knows his team took their pedal off the gas and was very honest in his response to the performance.
Cronin is a straight-shooter in terms of coaching his team. He does it for the love of his players and the hunger to be great. He is not solely focused on winning conference titles and championships. Instead, he wants his guys to learn the game the right way and be ready for the next level.
“I always go in there and tell them the truth,” Cronin said. “Look at the second-half defensive stats, look at their offensive stats in the second half. Most of it is after we got up 28, which we were up 28 with 10:24 left in the game. ‘I got to get my stats,’ they actually think that matters when it doesn’t matter. No scout gives a damn about your stats, they’re watching the game, they’re watching how you warm up, they’re watching how you act, they’re watching how you compete. They’re not watching your stats, it’s comical. They’re watching your turnovers, your assists, your defense, your decisions, your shooting percentage, they could care less how many points you average.”
The Bruins’ leading scorer in the win was sophomore Sebastian Mack, who finished with 21 points and was 15-16 from the free-throw line. He only made three field goals and the rest of his scoring was produced at the charity stripe due to his ability to get to the rim and get fouled.
Cronin was pleased with how Mack has developed in just a few games this season. After an ugly performance in the loss to New Mexico, Mack has stepped his game up tenfold with three straight games with double-digit scoring and limited turnovers.
“He [Mack] got 16 free throws; again, I think some of that was the other guys — teammates made some shots which helped,” Cronin said. “But he’s just really improving in his pace, in his decision-making. I told him at halftime, I said, ‘I think they’re going to really pack the paint on you in the second half.’ As soon as I went to say it to him, he goes, ‘I know what’s coming.’ He’s a sophomore, he’s getting better, he’s shooting a high percentage. I’ve always loved his toughness, he’s a bright spot for us.”
The Bruins will get back at it on Friday night when they host Cal State Fullerton (1-4). They have just two more non-conference home games left before they start Big Ten play at Pauley Pavilion against the Washington Huskies. Cronin will continue to improve his guys before the real tests start.
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