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Chancellor's letter to UND's Kennedy meant to 'protect the state,' lawyer says

Mark Kennedy addresses people after being selected as the next President of the University of North Dakota Tuesday at the Gorecki alumni center. Jesse Trelstad/ Grand Forks Herald

GRAND FORKS — A lawyer who serves on the State Board of Higher Education said Tuesday, April 16, that a letter sent to University of North Dakota President Mark Kennedy from Chancellor Mark Hagerott was an effort to “protect the state of North Dakota.”

Dan Traynor, who practices law in Devils Lake, said he discussed the strategy with fellow board members Don Morton and Nick Hacker, but he didn’t discuss it in advance with Hagerott, who wrote the letter and sent it to Kennedy on Friday.

“I didn’t discuss it with the chancellor, but he obviously agreed because he wrote the letter,” Traynor said. “And I think it was a good idea because it protects the state of North Dakota and the taxpayers and preserves our legal rights as far as the (North Dakota) University System is concerned. We have an obligation to protect the state of North Dakota and the taxpayers and I believe the letter was in conformance of that obligation.”

The letter congratulated Kennedy for being named sole finalist for a presidency at the University of Colorado. In the letter, Hagerott said comments Kennedy made in the days prior had equated to a “de facto resignation.”

“On behalf of the North Dakota University System, I accept your de facto notice of resignation,” Hagerott wrote.

Saturday, Kennedy responded, saying “I have not resigned my position as the president of the University of North Dakota. If I were to resign at some point in the future, I will provide you with written notice of my resignation.”

Traynor said Tuesday that whereas the entire board didn’t officially discuss the letter, Traynor “discussed it with legal counsel. I also discussed it with (SBHE Chairman) Don Morton and with (board member) Nick Hacker.”

Morton, however, said Monday that "I don’t know what the intent was. Our attorney and another board member worked with (Hagerott) on it."

Traynor said Tuesday that the intent of the letter is to protect North Dakota’s interests. Kennedy signed a two-year contract last July for a salary of $365,000 per year, plus benefits. Nowhere in the contract does it discuss conditions for breaking the agreement prior to its agreed-upon conclusion on June 20, 2020.

“When somebody tells you that they’re not going to come to work, that is an indication that they are not intent on performing their contract,” Traynor said. “I mean, that’s what the law is. If you have an employee that calls up and says ‘I have taken a job in Colorado and my last day is the 15th of June,’ that is an expressed intention not to perform.”

During the course of a five-minute interview Tuesday afternoon with the Grand Forks Herald, Traynor three times repeated this sentence and variations of it: “I think (Kennedy) has resigned his position of president of the University of North Dakota effective June 15, 2019.”

He also stressed that Kennedy has not been fired.

Last week, reporters asked Kennedy if he may be breaking his contract with UND if he leaves for the job in Colorado.

“I’m not a lawyer, and I don’t think by anybody’s judgment I would be breaking a contract. Nor would I believe there would be any grounds to say that from a legal perspective,” he said. “That said, I’m not a lawyer. If it were something that is not acceptable, I’m quite confident the University of Colorado would not be comfortable with this path.”

Morton feels Kennedy will be welcomed back to UND if he’s not offered the position in Colorado.

“I think there’s a very vocal minority — the negative people are always very vocal,” he said. “But I know there’s a very strong support group, too. And we’re just going to do what’s right. He’s got a contract. We’re going to honor that contract. We’re going to maintain our integrity.”

Traynor, however, apparently sees it differently.

“I think we all hope that President Kennedy gets the job in Colorado,” he said. “It will make life a lot simpler, for him and for the university system.”

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