Monday, April 13, 2009

Hedge Fund U, Version 2

We have posted frequently on the governance and leadership of academic medical organizations. While one would think that health care organizations, and especially academic health care organizations ought to be held to a particularly high standard of governance, we have noted how their governance is often unrepresentative of key constituencies, opaque, unaccountable, unsupportive of the academic and health care mission, and not subject to codes of ethics. How the governance of organizations with such exemplary missions and sterling repuations got this way has been unclear.

In 2007, we reported on one famous institution which had a more representative, transparent, and accountable form of governance. Let me provide a summary of the background from FIRE, the Foundation for Individual Rights in Education,
For over a century, Dartmouth College provided alumni with an avenue for direct participation in selecting leadership, with eight of the 18 members of Dartmouth's Board of Trustees coming from popular vote (the other ten were appointed by the Board). Starting in 2004, petition candidates—those who had to gather alumni signatures to be nominated—challenged those selected by the Association of Alumni in the annual trustee elections. Alumni responded in kind: over the next four years, four petition candidates were elected to the Board of Trustees.

These trustees spoke out when they perceived their alma mater as not living up to its mission, and Dartmouth students benefited. In May 2005, the college repealed its speech code, and it immediately moved from FIRE's "red-light" rating and became a 'green-light' institution.

These developments did not please everyone, however. Some campus officials viewed the propensity of petition candidates to voice their opinions on illiberal policies as detrimental to the school's image. The Wall Street Journal profiled T.J. Rodgers, a petition-nominated trustee, who explained the criticisms leveled at the 'divisive dissidents.'

>> If 'divisive' means there are issues and we debate the issues and move forward according to a consensus, then divisive equals democracy, and democracy is good. The alternative, which I fear is what the administration and [Board of Trustees Chairman] Ed Haldeman are after right now, is a politburo-one-party rule. <<

As the petition candidates grew in numbers (including George Mason Law Professor Todd Zywicki), so too did the official criticism. After Zywicki expressed disagreement with Dartmouth's leadership, the Board's chairman responded.

Haldeman and his cohorts wrote in a statement on the board's Web site that Zywicki 'violated his responsibilities as a trustee of Dartmouth College, which includes acting in the best overall interests of Dartmouth and representing Dartmouth positively in words and deeds.'

It was clear that a frank discussion of the issues at Dartmouth was not welcome on the governing board. The Trustees thus moved to alter the playing field. In September 2008, the Board declared that it would add five new positions—all hand-picked by current Trustees. The century-long tradition of parity between alumni-elected Trustees and the self-perpetuating Board members was erased. It came as no surprise when the Association of Alumni announced in January that the 2009 election would feature no petition candidates.


In 2007, what really got our attention was the stated rationale for this push towards less representative and accountable governance. Mr Haldeman, the chairman of the board of trustees, announced a smaller proportion of elected trustees would ensure that the board "has the broad range of backgrounds, skills, expertise, and fundraising capabilities needed," and that the board members would possess "even more diverse backgrounds." Yet when we examined the backgrounds of the current charter trustees, we found that they exhibited little diversity. Remarkably, three-quarters (6/8) were in leaders of the finance sector. In 2007, they seemed not very diverse, but why the majority should be in the financial sector, and what implications that had, was then obscure.

Things have changed. In the fall of 2008, the world economy descended into an unprecedented financial collapse. Many concluded that the global economic collapse was caused by arrogance, greed, and corruption within the financial sector.

This suggested that leadership of academia, and academic medicine in particular, by leaders of the finance sector might not, in retrospect, have been a such a good idea. Furthermore, when we had other occasions to look, we found that Dartmouth College was not an isolated case.

We noted that half of the Fellows of Harvard, the university's equivalent of a board of trustees, were from finance, and two were affiliated with corporations at the center of the global financial collapse. We recently found that almost 40% of the board of Yeshiva University were from finance as of the end of 2008. One former board member was Bernie Madoff, now in jail for running a giant Ponzi scheme disguised as an unregistered hedge fund. Yeshiva lost $110 million of its investments with Madoff. Another former member was indicted, accused of fraudulently abetting Madoff's operations. One current member runs a hedge fund that had to pay $180 million to settle other fraud allegations.

So we raised the hypothesis that some of the problems of academia, and particularly the problems of medical academia, may have been at least enabled by leadership more used to working in an increasingly amoral marketplace than to upholding the academic mission. Simultaneously, a commentary in the Chronicle of Higher Education put it this way,


Most college and university boards are composed largely of wealthy people, usually from the worlds of finance, law, and private enterprise. They are sometimes alumni but are often selected for their personal capacity to give, their links to other people who might give, or their historical record of having given.

Many trustees today have in fact been part of the elite sectors of finance, law, and enterprise that have proven improvident, shortsighted, and badly governed. Can they be seen as the wisest of our wise who will bring both generosity and wisdom to the academy?

News items from last week, some generated by release of financial disclosure forms from new members of the current US administration, add insight into what now appears to be a pervasive web of entanglements among academia and the finance sector.

One set of stories was about Lawrence Summers, now chief economic advisor to the US President, but president of Harvard University from 2001-2006. Just after resigning as president, and while still a professor at the university's Kennedy School of Government, Mr Summers suddenly began lucrative relationships with multiple players in the financial sector. Per the New York Times, Mr Summers assumed an amazingly well-paid part-time position at a hedge fund,

Mr. Summers, the former Treasury secretary and Harvard president who is now the chief economic adviser to President Obama, earned nearly $5.2 million in just the last of his two years at one of the world’s largest funds, according to financial records released Friday by the White House.

Impressive as that might sound, it is all the more considering that Mr. Summers worked there just one day a week.

Much is known about Mr. Summers’s days in Washington and Cambridge, but little attention has been paid to his two years in New York, from late 2006 to late 2008, advising an elite corps of math wizards and scientists devising investment strategies for D. E. Shaw & Company.
Mr Summers also collected prodigious speaking fees from many financial corporations, some of which subsequently failed or had to be bailed, out, as per the Washington Post, he

was paid more than $2.7 million in speaking fees by several troubled Wall Street firms and other organizations.

Financial institutions including JP Morgan Chase, Citigroup, Goldman Sachs, Lehman Brothers and Merrill Lynch paid Summers for speaking appearances in 2008. Fees ranged from $45,000 for a Nov. 12 Merrill Lynch appearance to $135,000 for an April 16 visit to Goldman Sachs, according to his disclosure form. Summers reported donating two fees totaling $70,000, including the payment from Merrill Lynch, to charity.
Summers received all this money why he was still a faculty member at Harvard. As noted by the Washington Post, he did not leave his faculty position there until 2009.

Although there is no evidence that Summers had financial relationships with corporations in the finance sector while president of Harvard, his sudden and very lucrative jump into that sector after leaving the presidency, and while nominally a full-time faculty member, suggests at least a major alignment of interests. Some commentators have made this point more forcefully, for example, Robert Scheer in the Nation,

Not surprisingly, Lawrence Summers is convinced that he deserved every penny of the $8 million that Wall Street firms paid him last year. And why shouldn't he be cut in on the loot from the loopholes in the toxic derivatives market that he pushed into law when he was Bill Clinton's treasury secretary? No one has been more persistently effective in paving the way for the financial swindles that enriched the titans of finance while impoverishing the rest of the world than the man who is now the top economic adviser to President Obama.

Perhaps this alignment was related to charges that while president of Harvard, Summers helped stifle someone who tried to blow the whistle on excessively risky investment practices involving financial derivatives at the Harvard Management Company. Per the Harvard Crimson,

After a year-long stint at a European investment bank and another at Enron, Iris M. Mack signed on to be a quantitative analyst for Harvard Management Company in early 2002, hoping, she says, to find job security and distance from the risky trading and accounting practices that forced her last employer into bankruptcy in the company charged with managing Harvard’s endowment.

But only a few months later, Mack says she was fired after she raised concerns to University officials about managers’ qualifications and possibly irresponsible usage of financial instruments that could have contributed to the recent and sudden decline in Harvard’s endowment.

In an e-mail sent May 30, 2002 to Marne Levine, chief of staff for then-Harvard President Lawrence H. Summers, Mack detailed her concerns regarding what she deemed HMC’s 'frightening' usage of derivatives and statistical modeling techniques, as well as the Company’s lack of a timely and portfolio-wide risk management system, high employee turnover rate, and low level of productivity in the workplace, specifically among managers.

According to documents and e-mail records, all provided by Mack, Levine had initially assured Mack that their correspondence would remain confidential. But on July 1, HMC chief Jack R. Meyer called Mack into a meeting, in which she was presented with copies of her e-mails, according to a letter sent to Levine and Summers by Mack’s attorney.

The next day, Meyer dismissed Mack, pointing to 'these baseless allegations against HMC [that you sent] to individuals outside of HMC,' the letter says.

Ultimately, Mack says she reached an out-of-court settlement with Harvard over her firing because her lawyers felt that the University did not want to attract media attention from the dismissal....

Now, with the economy in an unprecedented slump in part due to the widespread and unregulated use of derivative contracts, Mack says she feels 'vindicated' but also sad.

'I’m not trying to pretend I’m omniscient or anything, but a lot of people who were quantitative traders, in the back of our minds, we knew a lot of these models were just that: guestimates,' Mack says. 'I have mixed feelings, on the one hand, I wasn’t crazy, I knew what I was talking about. But maybe if more and more people had spoken up, the economy wouldn’t be the way it is now.'


So now we wonder whether the poor governance practices, and resultant poor leadership of many academic health care institutions may have resulted from the increasing dominance of the governance of these organizations by people from the "improvident, shortsighted, and badly governed" finance sector?

17 comments:

Anonymous said...

A question raised in a number of articles and television shows concerning the GM debacle is the position of the board in the decision making process. One consistent answer is that boards are made up of people who have a similar background and outlook.

One person made it clear: you do not invite a skunk to the garden party. Their way of stating you do not want someone who raises a stink.

As noted, from our local hospital and university boards, to the largest institution we see people with business or financial ties, but few if any people with experience in the industry they are trying to manage.

Many decades ago, in my first personnel class, I was taught not to hire a person just like myself. You want someone with perspective and vision. We do not need to look far to see the ruts dug by the practice of filling boards with people, just like ourselves, in any number of industries.

Steve Lucas

MedInformaticsMD said...

Steve, in the upper echelons people are hired not for their ability, but for the size of their wallets and connections. That is bad but --

At the lower echelons, people are not hired for their ability, but for their "skillsets", a very short sighted and narrow view of talent management.

I believe widespead destruction of western culture is to blame, leaving in its wake the bastardized culture of people who cannot think clearly about what is important in managing the world's complexities.

I can only watch in horror as the country (and others) devolve as a result of the inability to properly leverage talent in industry.

-- SS

Anonymous 2nd said...

Dr. Poses, you might obtain a more accurate understanding of nonprofit governance as it is practiced at Dartmouth on this blog comment.

The FIRE is a "free speech" organization and a highly unreliable and uninformed source for information about corporate governance at any institution. Between the lines are a number of corrections to the FIRE quotation as it appears in your post, as a suggestion of why you should not reprint anything from the FIRE ...

-----------------

The FIRE's statement about Dartmouth's board is glaringly inaccurate: "For over a century ... eight of the 18 members of Dartmouth's Board of Trustees coming from popular vote (the other ten were appointed by the Board)."

In truth, for more than 230 years, all but two of the members have been appointed by the board, with those two being unappointed ex officio members (the college president and state governor). For 70 of those years, five of the 12 members were nominated by the board, and five by the alumni, and all ten appointed by the board. Appointments are made by majority vote. In 1961 the specific number of nominees went to seven each, and in 2003 to eight each, when the board reached 18.

The FIRE's errors continue: "In May 2005, the college repealed its speech code, and it immediately moved from FIRE's "red-light" rating and became a 'green-light' institution." The college never had a speech code. FIRE changed its "rating" when the college removed the text of a speech from its website.

"After Zywicki expressed disagreement with Dartmouth's leadership, the Board's chairman responded." Such a misleading statement by the FIRE is an Orwellian affront to the facts. Zywicki did not "disagree" with the leadership, he violated his oath to the board and breached the legal duties to which every trustee of every private institution is held. While acting in his position as trustee, he gave a public speech mocking and insulting the board and its official decisions, insulting a deceased former trustee, and suggested that his listeners should donate to his employer instead of to schools such as Dartmouth. His official obligations at the time were to act in Dartmouth's best interest, to donate money to it, to raise money for it, and to give it a positive image. Zywicki was fortunate not to be removed from office imediately.

The phrase "Haldeman and his cohorts" is an immature reference to the Board of Trustees of Dartmouth College. Zywicki has a habit of describing the votes he loses as if they were actions of just a few individuals, not the official decisions of an institution that acts by majority vote, and the FIRE has adopted this stance.

Haldeman's letter was not merely a statement posted on a website. It was a public announcement of a private disciplinary action against Zywicki. He was formally reprimanded by the board and is probably the only trustee to disserve Dartmouth so egregiously in 200 years.

The FIRE is ignorant of exactly what paranoia was being vented in Zywicki's public monologue. It was neither "a frank discussion of the issues at Dartmouth" nor "on the governing board."

"The century-long tradition of parity between alumni-elected Trustees and the self-perpetuating Board members was erased." Orwell again – the entire board is self-perpetuating and has been since it was created in 1769. The charter mandates that the board be self-perpetuating. Perhaps the FIRE has something against the use of the majority vote. Alumni Trustees are only "alumni-nominated" while Charter Trustees are board-nominated, and neither group has ever made up half of the board.

"It came as no surprise when the Association of Alumni announced in January that the 2009 election would feature no petition candidates." This is incorrect. It was a surprise, because petitions are so easy to create. Alumni were unmotivated to run for the nomination for some reason.

Incidentally, after his term ended, Todd Zywicki ran for re-election by the board in another majority-vote contest, but this time he lost.

-----------------
Back to your own writing:

"In 2007, what really got our attention was the stated rationale for this push towards less representative and accountable governance." This conclusion is baseless. Adding people to the board does not make it any less accountable or representative. If anything, creating the potential to add more trustees of more varied backgrounds, industries, and experiences makes the board more representative. Your terms are also conclusory. The board has neither the purpose nor the obligation to be any more or less "representative" than it is already. Its members "represent" no constituencies, rather they are appointed by the board. The board is just as "accountable" to those with authority over it in the government as it was before.

"Mr Haldeman, the chairman of the board of trustees, announced a smaller proportion of elected trustees ..." This cannot be true if the proportion of elected trustees rose from 8/9ths to 12/13ths. The number of alumni-nominated trustees was preserved, which meant that in the expansion, it dropped from 4/9ths to 3/9ths of the board. The proportion has been smaller in the past.

"Yet when we examined the backgrounds of the current charter trustees, we found that they exhibited little diversity. Remarkably, three-quarters (6/8) were in leaders of the finance sector." I would doubt this statistic without some evidence. One of those you count as "leaders of the finance sector" is Karen Francis, who works for an advertising agency. The Charter Trustees at the time made up 8/18ths of the board. It was not as if financial-sector people were going to take over.

"In 2007, they seemed not very diverse," you write, referring to the Charter Trustees. And yet 25% of the Alumni Trustees were conservative Catholic men who graduated from Dartmouth in 1980, attended Virginia Law School, and taught at George Mason Law School at some point.

All trustees are expected to make donations to the institution. Dartmouth graduates are also overrepresented in the financial industry in this country for whatever reason. It is not surprising that a minority of the board was in finance as defined broadly.

"Many concluded that the global economic collapse was caused by arrogance, greed, and corruption within the financial sector." But that does not mean we have to take their conclusions at face value. Others believe the collapse was caused by mistakes and an absence of regulation, and that individual judgments about the personality traits of others (such as "arrogance" and "greed") cannot be the foundation of a reasoned or accurate economic study of the collapse. No one has been charged with corruption as a direct cause of the collapse as far as I know.

"This suggested that leadership of academia, and academic medicine in particular, by leaders of the finance sector might not, in retrospect, have been a such a good idea." What makes you think trustees are the "leadership of academia"? Trustees manage corporations. Corporations employ academics. A college president or dean of faculty is a leader of academia, and the trustees make the big decisions.

" ... and particularly the problems of medical academia ... " I still await evidence of a connection between the financial crisis and medical academia. How do you even define "medical academia"? Are you referring to medical schools? Dartmouth is not an "academic medical organization." It controls the Dartmouth Medical School, which is such an organization and has its own Board of Governors. Fifteen of 17 have a MD, PhD, or nursing degree.

" ... an increasingly amoral marketplace ... " The marketplace has not been "moral" since the market revolution of the 18th century. To find a "moral" marketplace today, you'd have to look for a theocracy. I'll bet in Iran the agreement of the buyer and seller of goods is not enough, they've got to test the transaction against an arbitrary schedule of religious correctness.

I am ignoring what looks like a separate post on Larry Summers. The generalizations above regarding the finance sector do not demonstrate actual governance practices on university boards. I am wondering what the "resultant poor leadership of many academic health care institutions" is. We are also left wondering what "the increasing dominance of the governance of these organizations" by people from finance means in terms of Dartmouth, where only a minority of the board was in finance before the reform, and an even-smaller minority is in the field after.

Roy M. Poses MD said...

I am impressed how much interest there is about the governance of Dartmouth College, presumably mainly among those affiliated with the institution. Every time I write something about the subject, I can expect a lengthy response from “Anonymous 2nd,” in defense of the Dartmouth administration and the Chairman of its Board of Trustees. So here we go again...

Although the blog post above was mainly about the leadership of Harvard, “Anonymous 2nd” had at it again.

I will organize my response into two sections, the first focused on his or her criticism of quotes from the FIRE web-site, the second to my own writing.

+++

Re the FIRE Quotes

First, he or she objected to my use of a quote from the FIRE web-site to summarize some of the issues at Dartmouth.

...

Free Speech

"The FIRE is a 'free speech' organization and a highly unreliable and uninformed source for information about corporate governance at any institution."

Well, that is his or her opinion, anyway. Of course, quick perusal of the FIRE web-site (http://www.thefire.org) reveals that the organization is broadly devoted to securing individual rights at institutions of higher education for students and faculty. Its mission is not just limited to advocating for "free speech." It is telling that "Anonymous 2nd" seems to imply that advocating for free speech is somehow disreputable.

...

The Selection of Board Members

"In truth, for more than 230 years...."
"The entire board is self-perpetuating...."
"Alumni trustees are only 'alumni-nominated'...."

Although every account of the process Dartmouth uses to award places on its board describes election by alumni of alumni candidates, some of whom may be nominated by petitions from the alumni, "Anonymous 2nd" repeatedly insisted that only the board itself elects its own members. He or she has done this in other comments, but never supplied any sources or citations for these assertions. They seem to go against all other published descriptions of the process that I have seen. If "Anonymous 2nd" has evidence that the alumni do not actually elect some "alumni trustees," I wish he or she would cite it.

...

The Duties of the Board

"Zywicki did not 'disagree' with the leadership, he violated his oath to the board and breached the legal duties to which every trustee of every private institution is held. While acting in his position as a trustee, he gave a public speech mocking and insulting the board and its official decisions.... His official obligations at the time were to act in Dartmouth's best interest, to donate money to it, to raise money for it, and to give it a positive image."

This is really an important passage, since it seems to reveal a fundamental disagreement between "Anonymous 2nd" and many other people, including me, about the role of trustees of a not-for-profit organization. To quote BoardSource, (http://www.boardsource.org/Knowledge.asp?ID=3.364 ) there are three duties of board members.

Duty of Care
The duty of care describes the level of competence that is expected of a board member, and is commonly expressed as the duty of "care that an ordinarily prudent person would exercise in a like position and under similar circumstances." This means that a board member owes the duty to exercise reasonable care when he or she makes a decision as a steward of the organization.

Duty of Loyalty
The duty of loyalty is a standard of faithfulness; a board member must give undivided allegiance when making decisions affecting the organization. This means that a board member can never use information obtained as a member for personal gain, but must act in the best interests of the organization.

Duty of Obedience
The duty of obedience requires board members to be faithful to the organization's mission. They are not permitted to act in a way that is inconsistent with the central goals of the organization. A basis for this rule lies in the public's trust that the organization will manage donated funds to fulfill the organization's mission.

Note that the duty of obedience requires board members to uphold the organization's mission. It does not require that they must click their heels and salute the board's chair, or their fellow board members. In fact, the duty suggests that if a board member were to believe that other board members were taking the organization in a direction that conflicted with its mission, it would be the duty of that first board member to speak out, even if such speech offended the other board members.

What seems to really get 'Anonymous 2nd’s" goat is that Mr Zywicki, one of the "petition" board members, dissented from the chair and board majority’s views. He or she did say that Mr Zywicki had an obligation to act in "Dartmouth's best interest," but failed to acknowledge that the board majority’s views and decisions may not necessarily coincide with the institution’s best interest.

"Zywicki has a habit of describing the votes he loses as if they were actions of just a few individuals, not the official decisions of an institution that acts by majority vote, and the FIRE has adopted this stance."

Again, the implication, especially coming from using the word "institution" to describe the board, is that the board's votes are beyond criticism, and that only the board can define the institution’s mission.

+++

Re My Own Writing

Then, "Anonymous 2nd" took me to task.

...

Representativeness of the Board

"Adding people to the board does not make it any less accountable or less representative."

It may, depending on who is added. Adding more leaders of finance to a board already heavily stocked with such leaders could make it less representative.

"The board has neither the purpose nor the obligation to be any more or less 'representative' than it is already."

I do not believe I ever stated the board was legally obliged to be "representative." A board more representative of the institution’s key constituencies, however, is more likely, in my opinion, to uphold the institution’s mission than is a homogeneous board dominated by leaders of one small industry segment (in terms of proportion of employed people nationwide).

"I would doubt this statistic without some evidence. One of those you count as 'leaders in the finance sector' is Karen Francis, who works for an advertising agency."

I went through the entire roster of old and newly added charter trustees (here: http://hcrenewal.blogspot.com/2008/11/leadership-of-elite-american-university.html)
On the current Dartmouth web-site
( here: http://www.dartmouth.edu/~trustees/biographies/francis.html)
Karen Francis is described as "CEO of KCF Ventures, consulting to private equity, luxury real estate, and technology companies." I would count the CEO for a firm that consults for private equity as a leader in the finance sector.

"Dartmouth graduates are also overrepresented in the financial industry in this country for whatever reason. It is not surprising that a minority of the board was in finance as described broadly."

Again, I found that 9/13 (69%) charter trustees, after their ranks were expanded, were leaders of finance. I do not doubt that more Dartmouth graduates have gone into finance in the past few years, but it is hard to believe that the proportion of living alumni in finance is anywhere near 69%. Remember that less than 6% of all employed people in the US are in finance.

Duties of the Board

"What makes you think trustees are the 'leadership of academia?'"

Common sense, plus many more formal descriptions of the governance of not-for-profit corporations strongly affirm that boards of trustees are the highest level of leadership and stewardship of the corporation.

+++

Conclusions

I suppose there are even more assertions by "Anonymous 2nd" that I could contest, but that would probably be overkill.

It may be that "Anonymous 2nd" represents the thinking of those who support the majority of Dartmouth’s board of trustees, or even more broadly, those who support how many academic, academic medical, and other health care organizations are currently lead and governed. In that case, his or her support for the notion that the will of the board majority is above reproach and beyond criticism, as if the board chair could declare, "l'universite c’est moi," should concern anyone who thinks not-for-profit organizations should uphold their missions, not the whims of their current leaders.

By the way, I fail to understand why "Anonymous 2nd" remains anonymous. After all, although he or she disagrees with me, he or she obviously supports the current powers that be at Dartmouth. Thus, why should he or she fear disclosing his or her name? The current Dartmouth board majority ought to what he or she has been writing. And if he or she disclosed his or her name, I could avoid the constant repetition of this awkward "he or she" construction.

Anonymous 2nd said...

Dr. Poses,

Since you seem to misunderstood my comments on FIRE, I will repeat them. FIRE is uninformed and unqualified to provide useful or reliable analysis of corporate governance at Dartmouth. For that general reason you should not have quoted from FIRE's comments on Dartmouth. I also showed why those particular comments were inaccurate, which is another reason you should not have used them as if they were some kind of unbiased or accurate source. Incidentally, FIRE admits on its own website that its First Amendment advocacy has no relevance at private institutions.

When you refer to "every account" of the election process, I think you mean "every conservative blogger." Reliable and authoritative accounts of the process are found in the charter, the 1891 resolution (quoted here and elsewhere), and the 2007 governance report. I believe I have cited these to you in the past. If they mention alumni at all, it is in the context of a nomination (by means unspecified) of suitable candidates who are not trustees until the board elects them. The petition you refer to is a device the Alumni Association created around 1980, I think.

There are some contrary accounts out there, but you will find them uniformly biased and unsubstantiated. They seem to believe that by repeating a myth enough times, it will become reality. Some of them go on and on about unspecified oral contracts to sell trusteeships made by unnamed and long-dead individuals. Of course no proof of these supposed contracts has emerged, despite many hours of searching the records, because they never existed.

It is very funny that you would ask for "evidence that the alumni do not actually elect some 'alumni trustees.'" You have turned the presumption on its head. If you have evidence that Coke shareholders do not vote for the board of Pepsi, I wish you would cite it.

Thank you for quoting one interpretation of a trustee's duties to his board. Next I would like you to explain how a trustee suggesting that his audience donate money to his own employer instead of his board, or nothing at all, constitutes loyalty or obediance. How does publicly ridiculing a private board vote as "Chavez-style democracy" support the interest of the organization? How does any public speech satisfy that duty to first speak out to other board members? I doubt Zywicki ever said he thought the board was taking the institution away from its mission, which is to educate students. He objected to a vote regarding the bylaws, which he lost. Serving alumni, or selling seats to alumni, is not the mission of Dartmouth.

After your overview of Zywicki's legal duties, you didn't mention any of the other duties to which he voluntarily acceded when taking his seat on the board. He swore to uphold the Trustee's Oath and to follow the rules of the board. Those rules required him to give money to Dartmouth, to raise money for it, to keep private matters private, and to represent Dartmouth positively in word and deed. He broke all of those rules in his Pope Center speech. Even without the three legal duties you mentioned, these are reason enough to reprimand him, at the very least. You also failed to mention how, after his reprimand, he signed an amicus brief in a lawsuit against his own board trying to overturn the bylaw vote that Zywicki had lost (the suit sought to take board powers and give them to an outside organization of which Zywicki was a member). The board also determined that this was obviously a violation of his oath, the board rules, and his legal duties but did nothing about it at the time.


"What seems to really get 'Anonymous 2nd’s" goat is that Mr Zywicki, one of the "petition" board members, dissented from the chair and board majority’s views." No, I don't care if he dissents from the majority's views, and I don't see how you or I would even know what goes on in board meetings. The meetings are private, as are the trustees' discussions and votes. I am sure Zywicki and plenty of others frequently dissented from the majority's views.

In any board, it is possible that "the board majority’s views and decisions may not necessarily coincide with the institution’s best interest." So what? The general possibility that a board might make mistakes – as viewed after the fact – does not excuse an individual trustee's clear violation of his duty to act in the interest of the institution. There are clear processes in place to correct any board's decision to serve its "whims" over the interests of the corporation. No one has even suggested invoking those processes here, because the board's decision not to seek alumni nominees for half of its new seats is so obviously reasonable and in Dartmouth's interest.

You say the implication "is that the board's votes are beyond criticism, and that only the board can define the institution’s mission." Do you really think Zywicki's public speech and legal filings were mere "criticism"? Even if they are, do you think the board's votes really can be criticized outside the boardroom in every case by someone who has sworn to represent the board positively? And who, pray tell, can define the institution's mission if not the board? Only the board can define the institution of any nonprofit educational corporation.

"Adding more leaders of finance to a board already heavily stocked with such leaders could make it less representative." But the board's 2007 vote did not add "leaders of finance." It added eight seats. You seem to object to is the individual choices for the first five of those seats. Those people are only going to be on the board for a few years, less than a decade at most. Fine.

"A board more representative of the institution’s key constituencies, however, is more likely, in my opinion, to uphold the institution’s mission than is a homogeneous board dominated by leaders of one small industry segment (in terms of proportion of employed people nationwide)." Thank you for the backtracking. If it matters, I suspect that this institution's "key constituencies" are in fact mostly financiers anyway.

I wouldn't count the CEO for an advertising firm for private equity, realty, and other industries "as a leader in the finance sector." She is not a banker or an investor or a CEO of a financial firm. She doesn't move money around or make any of the kinds of decisions that led to the financial crisis.

" I found that 9/13 (69%) charter trustees, after their ranks were expanded, were leaders of finance." That exaggerated proportion would be relevant if the charter trustees were the whole board. They are not. There are 23 people on the board. Finance leaders are a smaller minority now than they were before the five new trustees were elected.

Can you explain why in the world you think an arbitrary subcategory, that of Charter Trustee, should have professions that proportionally represent those of alumni? I would argue that any board that elected members your way instead of doing what's best for the institution has failed in its duties.

"boards of trustees are the highest level of leadership and stewardship of the corporation." Yes, they do. And the corporation is not synonymous with "academia" generally or the faculty in particular. The role of the trustee is not that of an academic or necessarily a leader of academics. Supporting scholarship or teaching are parts of the board's job, but only parts.

"I suppose there are even more assertions by "Anonymous 2nd" that I could contest, but that would probably be overkill." No, I think you should contest them, otherwise I will assume you don't.

I represent my personal views on the matters we've discussed, not those of the leaders of "academic medical institutions" or anyone else. My views do not include the conclusion, suggested by you, that the board is beyond any criticism by anyone. What point are you trying to make by extrapolating such a conclusion from remarks that are clearly meant to correct your misstatements about how Dartmouth's board works? I get the sense that you are trying to salvage a position you staked out without doing the research first.

Kimball Atwood, MD said...

@ Anonymous 2nd:

You ought to reveal your identity. I realize that you declined to do so in January (http://hcrenewal.blogspot.com/2008/11/leadership-of-elite-american-university.html#c8415477089065639537), but at this point the readership could evaluate your assertions--some of which may be perfectly valid--more reasonably by knowing who you are. Otherwise you are likely to be viewed as your language increasingly suggests: someone whose material interests are so threatened by criticisms of the Dartmouth BOT that he or she is incapable of entertaining even the possibility that such criticisms might be worthy.

If you are such a person, you have nothing to lose by admitting it, of course. If not, let us know. If you worry that by learning your identity readers will misconstrue your interests, then please make your case.

Anonymous 2nd said...

I prefer to think that your arguments stand or fall on their merits, and knowing the identity of the writer doesn't make them any more or less compelling. I am not a member of the Board and have no material interest that is threatened by the attacks on the Board, if that is what you are suggesting. You must be new to this discussion if you think there is nothing to be lost by a commenter who reveals his identity. A number of Board antagonists have formed secret and semisecret societies and PACs, lobbied the state legislature, bought ads in national papers, launched scurrilous websites, and filed multiple lawsuits. In some of these activities they have publicly insulted and defamed their opponents, not just the Board. I prefer not to be insulted by name.

I am capable of entertaining the possibility that Dr. Poses' criticisms might be worthy. That is why I am asking Dr. Poses to make his case.

Anonymous said...

Here are some facts:

Dartmouth filed a motion to dismiss the lawsuit on the 1891 Agreement. That motion was rejected on all counts. The Court said that plaintiffs could proceed with the case. Notably, in the most recent lawsuit to enforce the 1891 Agreement Dartmouth chose not to file a motion to dismiss--because it knew it would lose.

Do you really think that the state court refused to dismiss based on some random, unproven oral promises? Have you read the court's opinion? Have you looked at the hundreds of pages of documents that were attached to the plaintiff's motion in that case?

The petition process predates 1980--1980 just happens to be when the first petition trustee was elected.

Zywicki's Pope Center speech did not say to to give to George Mason instead of Dartmouth. What it said was that someone who is interested in trying to reform higher education should direct their philanthropy to up-and-coming institutions rather than to institutions like Dartmouth. Dartmouth's behavior in booting Zywicki off the board--especially in the crooked manner it did so--demonstrates beyond any doubt Dartmouth's attitude toward reform efforts.

Members of the Dartmouth board routinely serve on other corporate and non-profit boards and raise money for those organizations. Under your theory, every time a trustee raises money for the local ballet rather than Dartmouth, he or she is breaching his fiduciary duty. That is an utterly absurd position.

Most importantly, do you really think that the board showed good judgment and sound governance in expelling a trustee via a secret star-chamber proceeding where new FALSE allegations could be raised with no opportunity for rebuttal? Doesn't the fact that the board could construct and implement such a system vindicate the views expressed in Zywicki's Pope Center speech?

More generally, are you really arguing that the fiduciary duties of trustees are served only by being mindless cheerleaders for the president of a university and his lackeys on the board? Do you seriously think that Duke University's trustees would have breached their fiduciary duty by speaking up against the faculty in the Duke lacrosse situation? If so, and if this view is widely shared, then academia is a much sicker place than I could have imagined.

This sort of attitude also probably explains why corporate boards have failed so miserably to do their jobs over the past decade--they are too busy cheerleading rather than asking tough questions.

You fall back on subjective platitudes like "represent Dartmouth positively in word and deed." Apparently Anonymous 2nd's view is that if someone is a conservative, then his or her opinion is invalid--and Harvey Silverglate and FIRE, incidentally, are not conservatives, nor is TJ Rodgers for that matter. Obviously all of those commentators, and many rank-and-file alumni, don't believe that Zywicki's Pope Center remarks failed to represent Dartmouth "positively in word and deeds." In fact, it was precisely the opposite inference.

How did the board majority represent Dartmouth positively in word and deed by conducting a "political lynching" of a trustee through a secret, star-chamber proceeding? Did trustee Brad Evans "represent Dartmouth positively in word and deed" when he belittled the petition and other alumni trustees on the grounds that "one of the major problems of petition candidate success was that they took spots away from large donors?"
http://superdartmouth.blogspot.com/2007/08/student-leaders-meet-trustee.html

Anonymous 2nd said...

Anonymous:

Dartmouth's motion to dismiss the first lawsuit was not "rejected on all counts." It caused the court to eliminate one or two of the plaintiff's claims, although the court denied the request to dismiss the entire case. The plaintiff's case met the minimum standard to go forward as long as the truthfulness or falsity of its factual claims was ignored. Every plaintiff who loses at trial because his case is meritless has nevertheless met this standard.

"Notably, in the most recent lawsuit to enforce the 1891 Agreement Dartmouth chose not to file a motion to dismiss--because it knew it would lose." This is false. The case, which is several degrees weaker than the original lawsuit because of diminished funding and the requirement of using a third-party claim, is ongoing, and you have no way of knowing the reason for the absence of a motion to this point. Dartmouth claims here that the case should be dismissed because the plaintiffs lack standing and because their claim is barred by the dismissal of the prior lawsuit, which said the same thing.

"Do you really think that the state court refused to dismiss based on some random, unproven oral promises?" Of course it did. They were not "random" oral promises, they were carefully created by the plaintiff to make its case as plausible as possible. All factual allegations are "unproven" at this stage, and a motion to dismiss does not test the factual allegations at all. You could have claimed a breach of contract to sell the Brooklyn Bridge and as long as the petition made all the required claims – however baseless – the court could not have dismissed it.

I have read the court's order. I focused particularly on the part where the court said it was required to take all the factual allegations as true for purposes of the motion only. The plaintiff never got a chance to try to prove its factual allegations.

None of the documents proves the existence of a contract in 1891, let alone its contents. None of the documents shows a contract that is non-illegal (i.e. not an attempt to sell off an inalienable charter right), not contradictory of all of the written evidence (the 1891 resolution allowing the nomination of five people, the 1891 Alumni Association minutes reprinting the 1891 resolution, the charter requiring election by the board, and the 1891 charter amendment which would have allowed alumni elections had it not been rejected). None of the documents shows a contract whose enforcement is not barred by state laws that require contracts to be in writing.

"What it said was that someone who is interested in trying to reform higher education should direct their philanthropy to up-and-coming institutions rather than to institutions like Dartmouth." Obviously. There is no way that would "Help Dartmouth secure the financial, human and other resources necessary" or "Contribute financially to the annual fund and to capital campaigns, within one's means, at a level that demonstrates Dartmouth is a high philanthropic interest." Zywicki promised to follow those rules.

"Dartmouth's behavior in booting Zywicki off the board – especially in the crooked manner it did so" So enough individual trustees voted against his reelection after the end of his term in a democratic contest. How is that "crooked," let alone "booting"? It looks to me like he lost a vote.

"demonstrates beyond any doubt Dartmouth's attitude toward reform efforts." But (a) Zywicki is not a reformer, in fact he fought against the board reform, and (b) both Robinson and Rodgers were re-elected. What attitude does that demonstrate? I think it shows that a majority of the trustees voted for those two guys and not for Zywicki, and we can only assume they had their reasons. It's an internal decision that you are not a part of.

Even though "Members of the Dartmouth board routinely serve on other corporate and non-profit boards," they do not appear as Dartmouth Trustees at a panel on trusteeship in which they proceed to violate a variety of specific duties to the Dartmouth board. If you want to criticize the Board, you shouldn't join it and promise to follow its rules, keep its meetings private, represent it positively in public, raise money for it, and so on. Zywicki voluntarily assumed a bunch of obligations and then proceeded to trash them.

You have not even mentioned his meetings with an anti-administration secret society. How could being photographed with a group whose stated purpose was to remove the College President from office comply with any duty to the board? If Zywicki had wanted Wright removed, he would have offered a motion in a board meeting just like everyone else. This is part of Zywicki's problem - he seems to think he deserves more than everyone else. When he lost the vote on the expansion, he didn't sit down and be quiet, or be content with a motion to vote again. He publicly supported a lawsuit against the board. His board.

"expelling a trustee via a secret star-chamber proceeding" – but I thought all of the board's meetings were private, aka "secret." Have you ever seen a nonprofit board hold its internal election vote in public?

"where new FALSE allegations could be raised with no opportunity for rebuttal?" – How do you know? Where you there? Why would new allegations make any difference when the things he did that were caught on tape and filed in the court and published in the paper were more than enough reason for any individual to decide to vote against him? He had a chance to make a statement and give them his take on the facts. They didn't owe him any more than that, and they didn't need any extra allegations.

"Doesn't the fact that the board could construct and implement such a system vindicate the views expressed in Zywicki's Pope Center speech?" The rules that say everybody's term is 4 years, and he can run for reelection once are a reasonable system. Or are you talking about having Zywicki outside the boardroom when they voted? That's reasonable too.

Let's see, the views Zywicki expressed that you imagine to be vindicated by his Pope Center rant include: (a) disturbing paranoia about feminists, liberals, and godless humanists, (b) the statement that the late President James O. Freedman was "a truly evil man," (c) the idea that a majority vote on a reasonable amendment to the bylaws amounted to "Hugo Chavez-style democracy," apparently because he was voted down, (d) the idea that the audience should donate to up and coming institutions instead of established ones, etc. etc. None of those views is vindicated by the Board's vote not to re-elect him for a second term.

"are you really arguing that the fiduciary duties of trustees are served only by being mindless cheerleaders for the president of a university and his lackeys on the board?" No. The fact that you have a low opinion of some trustees does not excuse Zywicki's violations. You sound like some kind of moral relativist for whom there are no clear rules. (Dartmouth is a college, not a university.)

"Do you seriously think that Duke University's trustees would have breached their fiduciary duty by speaking up against the faculty in the Duke lacrosse situation?" No, why? Did they do that? What does an official board statement have to do with one self-serving loose cannon shooting his mouth off?

"academia is a much sicker place than I could have imagined." What's academia got to do with the corporate boardroom?

The requirement that Zywicki represent Dartmouth positively is not a "subjective platitude." It is a rule that Zywicki promised to uphold. If he had not wanted to follow it, he would not have run for the nomination. The full quotation is "Each Trustee assigns a high priority to a stewardship role with a commitment to the strengths, traditions and values of the institution and pledges to fulfill the following responsibilities: ... Advance the mission of Dartmouth ... Represent Dartmouth positively in words and deeds, particularly and proactively to Dartmouth constituents." He also promised to "Adhere to the highest standards of personal and professional behavior so as to reflect favorably on Dartmouth." While I am sure you would be able to make up ways to excuse almost any misdeed from these rules, there is no way Zywicki's speech or his amicus brief were professional or represented Dartmouth positively. Calling the late former president "truly evil" represents Dartmouth negatively. Calling the 2007 reform "a pure act of thuggery" or "Chavez-style democracy" represents it negatively.

"Apparently Anonymous 2nd's view is that if someone is a conservative, then his or her opinion is invalid." If you think that's apparent, then you are not reading carefully. The FIRE should not be quoted on a blog as an authority of any kind regarding Dartmouth's corporate governance. This is not because it is conservative or not. Harvey Silvergate's opinion as printed in the Boston Phoenix is invalid because he has no idea what he's talking about. Ditto for Rodgers's in The Daily Dartmouth. Their opinions are worthless because they can't even get the facts right, not because of their political views outside of this discussion.

"many rank-and-file alumni, don't believe that Zywicki's Pope Center remarks failed to represent Dartmouth "positively in word and deeds." I doubt that is true as a matter of fact, and in any case it makes no difference whatsoever, since alumni were not doing the voting.

"How did the board majority represent Dartmouth positively in word and deed by conducting a "political lynching" of a trustee through a secret, star-chamber proceeding?" The press release after the vote was a public representation. The internal, private vote was not. The individuals casting the democratic majority of votes against Zywicki's reelection did not even consider whether they were "representing" Dartmouth. They were not raising money for it or donating to it, either. It sounds like you and Zywicki both are a bit fuzzy about the difference between what trustees are obligated to say inside the boardroom and out of it.

I am surprised at how inflamed are your perceptions of this topic. I am looking forward to seeing how you use the word "lynching" when Stephen Smith loses his reelection vote after the end of his first term.

Roy M. Poses MD said...

"Anonymous 2nd" above declined to reveal his/her identity, because he/she would "prefer not to be insulted by name."

But cloaked in anonymity, above you called FIRE, an organization which does not hide the identities of its officers and staff, "highly unreliable and uninformed," and "ignorant."

In other comments, you have insulted other people.

You are entitled to your personal opinions, but while you remain anonymous, your personal opinions about who is unreliable, uninformed, ignorant, silly, etc do not deserve any credibility.

Anonymous 2nd said...

This web-log regularly benefits from the insight of anonymous commenters whose ideas are at least dealt with regardless of the prestige of the names attached to them. My observations are not meant to insult FIRE's staff, which no one has even referred to until now and who still remain anonymous. They are meant as a critique of Dr. Poses' use of the quotation, as a way of showing why Dr. Poses cannot rely on quotes from FIRE as if they were reliable evidence. I hope that Dr. Poses will return to the discussion at hand and try to support any of the inaccuracies put out by the unnamed source within FIRE whom he quotes:

-For over a century, eight of 18 members of the board were "alumni-elected" trustees "coming from popular vote" as a form of "direct participation," with the other ten appointed by the board as the only "self-perpetuating" trustees. (We are all aware that the election myth is a myth regarding this self-perpetuating board; that the board has numbered from 12 to 18 over the last century; and that the existence of two ex officio trustees means that there were eight board-nominated Charter Trustees, not ten. This mathematical error is highlighted by the FIRE's later comment about "parity").

-The college had a speech code that it later repealed.

- The board reprimanded Zywicki because he "expressed disagreement with Dartmouth's leadership" in "a frank discussion of the issues at Dartmouth" "on the governing board" that was, implicitly, not an insulting and unprofessional public disgrace.

-The reprimand was, implicitly, not issued by the board but by "Haldeman and his cohorts."

-"It came as no surprise when the Association of Alumni announced in January that the 2009 election would feature no petition candidates." (FIRE has confused the Association of Alumni with the Board of Trustees. They are different organizations. This was an election for the eleven officers of the alumni club that had nothing directly to do with the Board of Trustees).

I am not putting out contentious ideas or making statements that require credibility. I am challenging those assertions of yours that appear to be mistaken and asking you to stick to the facts. All of the rights and obligations of the board that are relevant to this discussion may be found in the charter, the 1891 resolution, the 2007 governance report, the Zywicki reprimand, and the board's recent response to Zywicki's letter. These documents contain thousands of words, and it is within the realm of possibility that some of them are inaccurate. If you believe this to be the case, you are encouraged to point it out. Until then, however, you do not have a good reason to believe any set of facts other than the one that is presumed by the law and described by the board over centuries. You might not see the perpetuation of the election myth as harmful, but it is, and those who spread it have cost themselves and Dartmouth millions over the last few years, since the myth was invented.

Roy M. Poses MD said...

There are many other summaries of the Dartmouth case that suggest that the alumni used to elect de facto a substantial proportion of the trustees.

If you want to argue with suspect facts in the FIRE summary, please do not simply claim the support of some large and complex document. Provide one or more relevant quotes and explain how they support your argument.

In any case, what is the relevance of your comments to the main points in my post above?

Roy M. Poses MD said...

Since "Anonymous 2nd" seems to have many concerns about how I have summarized the Dartmouth case, I thought I would provide an alternative summary, this one from Harvey Silverglate (who is also Vice President of FIRE). His full posting on his candidacy for the Harvard Board of Overseers is here:
http://www.mindingthecampus.com/originals/2009/04/in_theory_email_should_make.html

His relevant comments on the Dartmouth case are here, with links:
===
For a couple of years, I have had the honor and pleasure to represent Thurman J. "T.J." Rodgers, a prominent and successful businessman (and libertarian) who undertook a run as an alumni-nominated petition candidate [http://www.opinionjournal.com/editorial/?id=110010549 ] for Dartmouth's Board of Trustees. I will not recount here the full, sad saga of the war that the entrenched Dartmouth administration and majority of its Board of Trustees have waged - largely successfully so far - against the presence, on Dartmouth's Board, of independent-minded [http://www.thefire.org/index.php/article/5400.html ] "alumni petition trustees". But, briefly stated: For over a century, there had been in place a contractual agreement guaranteeing Dartmouth's alumni the power to elect half of the college's Board of Trustees. But through a series of deft maneuvers [http://thedartmouth.com/2007/06/10/news/board/ ], that agreement has recently been severely undermined [http://thedartmouth.com/2008/09/06/news/boardupdated/ ], and the administration, along with the pro-administration group of "charter trustees" (a self-perpetuating body, not nominated by the alumni), has wrested complete, unfettered control over the college. The majority's dismissal [http://thedartmouth.com/2009/04/07/news/zywicki/ ] in early April of an alumni-elected member of the Board, Professor Todd J. Zywicki, was recently recounted [http://thedartmouth.com/2009/04/22/opinion/rodgers/ ] by Rodgers, who remains on the Board as one of that body's dwindling contingent of independent voices of the alumni. (Caveat: I speak for myself in this article, not for my client Rodgers.)
===

Roy M. Poses MD said...

Re: "Anonymous 2nd's" second set of comments on 27 April:

Re his/her various factual assertions about the alumni lawsuit, what is their relevance to my post above (which was mainly not about Dartmouth), or any of my posts relating to Dartmouth? Bad leadership or governance is not necessarily, and probably rarely illegal. But just because aspects of leadership and governance are not illegal does not make them good.

"Anonymous 2nd" again made a variety of assertions and provided a variety of opinions, e.g.:
"Zywicki is not a reformer."
"his meetings with a secret society..."
Zywicki "seems to think he deserves more than anyone else."
Zywicki's "rant" included "disturbing paranoia about feminists, liberals, and godless humanists...."
The other anonymous commentator above sounds "like some kind of moral relativist"
"There is no way Zywicki's speech or his amicus brief were professional...."
Harvey Silverglate "has no idea what he's talking about. Ditto for Rogers...."
None were supported by evidence. As I have no written ad nauseum, why should we believe the unsupported assertions and trust the unsupported opinions of someone who remains cloaked in anonymity?

Roy M. Poses MD said...

By the way, there is a letter in The Dartmouth, published today, 29 April, 2009, by John Engleman, Dartmouth '68, a member of the Dartmouth Association of Alumni Executive Board, which has some content and stylistic similarities to the posts by "Anonymous 2nd."

http://thedartmouth.com/2009/04/29/opinion/voces/

"Anonymous 2nd," are you John Engleman?

Anonymous 2nd said...

Silvergate is running in his own "petition" candidacy, operates a nonprofit that has specifically supported Zywicki and criticized the board in the past, has no known expertise or familiarity with corporate governance, has never voted in a Dartmouth trustee nomination contest, and acknowledges that Rodgers is a client of his! I see no reason why we shouldn't take his word for the way things work over, say, the unambiguous text of the state-granted charter, do you?

Silvergate cannot get his facts straight. He refers to a successful war against petition candidates, and yet all five petition nominees since the petition was invented in 1990 have been elected by the board. Of the three recent nominees to go up for reelection, two were reelected by the board. That is not a war, let alone a successful one. There is no "contractual agreement guaranteeing Dartmouth's alumni the power to elect half of the college's Board of Trustees," as stated elsewhere. The board resolved to allow alumni to nominate eight "suitable" alumni for election – by the board's majority vote, per the charter. Failure to win a majority of votes will result in the nominee not being elected, as recently happened with Zywicki. There is no contract, there is no "right," there is no "election" by alumni directly to the board, and there is no "half" of the board. Eight alumni trustees were 8/18 of the board and are now 8/23. The charter trustees are not "self-perpetuating," the board as a whole is.

Silvergate misleads when he calls the board's majority vote to adopt the committee's reform recommendations "a series of deft maneuvers." All the petition trustees and alumni trustees were free to vote and did. They did not succeed in convincing a democratic majority of their peers not to adopt the proposed reforms. So what did they do then? Supported a lawsuit trying to use judicial interference to overturn the vote. They never claimed there was anything wrong with the vote itself in a procedural sense or in relation to the board's duties or its mission. They were upset that they lost.

The board has not "wrested complete, unfettered control over the college." It has had that since 1769. Zywicki did not suffer a "dismissal" by the "majority" only. He failed to win reelection. He lost a democratic vote.

I am not sure what factual assertions about the lawsuit I made in my second post of the 27th above. Could you point them out? In case you think the suit is about "bad leadership," it is not. The only point of the lawsuit is the theory that long-dead members of the board, by a still-vague oral contract, once sold the right to elect a specific but ever-changing proportion of the board in perpetuity.

My comment about Zywicki not being a reformer was a correction of your suggestion to the contrary. My opinion is no less valid than yours, and surely a bit more valid since I point out his failures and show some familiarity with the topic.

"his meetings with a secret society..." is not a statement of opinion, it is a fact reported in the Dartmouth and acknowledged by Zywicki, who allowed himself to be photographed with the group.

You ask "why should we believe the unsupported assertions and trust the unsupported opinions of someone who remains cloaked in anonymity?" Because they are more plausible than the unsupported assertions and opinions you've marshaled on your side, for starters. Because all the ones that matter are in fact supported. And if in the end you don't believe them, you should at least acknowledge that they eliminate your position entirely. As the one supporting the outlandish, contradictory, and intentionally vague oral contract theory hinted at by Silvergate above, you are the one who should be finding one scrap of credible evidence supporting your position. And while you are at it, could you explain how the board could uphold the mission of the college or meet the other duties of which you are so fond if it were constantly in violation of its charter? The state attorney general holds nonprofits accountable for complying with their articles of incorporation -- if you think Dartmouth has been selling seats, why don't you report it?

No, I did not write the letter that appeared in the paper.

Roy M. Poses MD said...

Anonymous 2nd -

You have repeated, again and again, two rather technical points about the governance of Dartmouth, and especially about the contrast between alumni and charter trustees. The first point seems to be that even alumni trustee candidates who got sufficient votes to win what to all other observers would appear to be an election must be approved by the existing board before becoming members of that board. Thus you contend that such candidates are elected by the board, not by the alumni, even if they are presented to the board after an alumni election. You have now provided evidence in support of this contention, for which I thank you. As far as I can tell, the existing board has not chosen to reject any candidate presented after an alumni election. So, simplistically, it does seem that the alumni board members were elected by alumni. If you would prefer to say that they were selected by an alumni election, and seated only with the approval of the existing board, that is fine with me.

The second point is that the alumni trustees never made up 50% of all trustees, even though they used to be equally numerous as the charter trustees. The reason that they did not make up half of the board is that the board also traditionally included two ex-officio members, the president of the university, and the governor of the state.

After conceding these points to the extent I just did above, however, it is still true that the alumni used to have elections to select alumni trustees who were just as numerous as the charter trustees, but now, after changes made by the board majority, there are more charter trustees than alumni trustees.

Please note that again, none of this really relevant to most of my lengthy post above, which focused on the governance of Harvard. Furthermore, you did not address the contrast between Dartmouth board chairman Haldeman’s contention that an increase in charter trustees would lead to more diversity on the board, and the fact that a majority of charter trustees were and still are from a single sector of the economy, far out of proportion to the numbers employed in that sector.

Your comments above also presented a strange notion of what constitutes “democratic” governance. You described the Dartmouth board’s vote not to re-appoint Prof Zywicki as an alumni trustee as reflecting “a democratic majority of their peers,” and a “democratic vote.” As we have discussed ad nauseam, charter trustees are selected by the existing board, ex officio trustees are just that, and alumni trustees, who are selected by alumni elections, have always made up less than half of the total board. Thus, the board in toto is hardly a democratic institution. In particular, the charter trustees represent no one but themselves, and the university president was selected by a previous board. So while the board may conduct votes, only a minority of its members represent in any sense anyone else. Calling its process “democratic” is only slightly less ridiculous than calling the Soviet Politburo’s rule “democratic.”