Friday, April 24, 2009

Pension Fund Scandals, Payment Agents, "Chooch" and the Anechoic Effect

As we get closer to graduation season for most institutions of higher education, another story about the leadership and governance of higher education, involving an institution housing a prominent medical school, has come into view, albeit indirectly. Let me try to explain this complex story, which on its surface has something to do with the ongoing financial crisis, but nothing to to with academia, by quoting, as usual, from media coverage.

We start with an article from the New York Times last week:

The man leading the Obama administration’s efforts to restructure the auto industry has been described in Securities and Exchange Commission documents as having arranged for his investment firm to pay more than $1 million to obtain New York State pension business.

Although he is not named in the documents, a person with knowledge of the inquiry said the investment executive is Steven Rattner, co-founder of the Quadrangle Group, the prominent private equity firm.

The S.E.C. complaint, filed as part of an expansive state and federal investigation into corruption at the state pension fund, details the efforts of Quadrangle to gain business from the pension fund beginning in 2004.

The person who received most of the $1 million-plus payment has been indicted, accused of selling access to the fund.

Here are the details of allegations of how Mr Rattner interacted with intermediaries to get NY state pension fund investments into his company.

Investigators are scrutinizing the fees paid by investment firms to intermediaries who arranged deals with the $122 billion pension fund. While such payments are legal, they often raise questions about conflicts of interest and would be illegal if used to bribe public officials.

In a 123-count indictment issued last month, two aides to Mr. Hevesi were accused of selling access to the fund. The aides, Hank Morris, who was Mr. Hevesi’s top political consultant, and David Loglisci, the fund’s chief investment officer, have denied any wrongdoing.

The S.E.C. complaint, which was released Wednesday, describes steps undertaken by the Quadrangle executive to win $100 million worth of business from the pension fund in 2005. That amount accounted for nearly 5 percent of a Quadrangle private equity fund and helped the company raise money from other investment funds.

In October 2004, the executive met with Mr. Loglisci to seek the pension fund investment and Mr. Loglisci 'reacted favorably' and 'began taking the necessary steps to secure approval' for the investment, the complaint said.

Two months later, in December, the same executive met with Mr. Morris, who, according to prosecutors, was working in tandem with Mr. Loglisci to generate millions of dollars in fees from the investment firms, and within weeks had agreed to a deal to pay an obscure securities firm that employed Mr. Morris 1.1 percent of any money that the retirement fund invested with Quadrangle, as a placement agent fee. That worked out to $1.1 million, of which Mr. Morris received 95 percent.

The timing of the meeting with Mr. Morris was significant, the complaint indicated, because the Quadrangle executive had already met with Mr. Loglisci and would presumably not need a placement agent. In addition, Quadrangle had previously retained a separate placement agent.

The executive also met with Mr. Loglisci about a low-budget movie Mr. Loglisci was producing, 'Chooch.' Soon afterward, GT Brands Holdings, a company owned by one of Quadrangle’s private equity funds, made a deal to acquire the DVD distribution rights to 'Chooch,' an agreement that made the film’s producers nearly $90,000.

The Quadrangle executive called Mr. Morris after the distribution deal was closed, and told him of the deal’s 'connection to Loglisci.' Three weeks later, Mr. Loglisci 'personally informed the Quadrangle executive that the retirement fund would be making a $100 million investment' in Quadrangle, the complaint said.

Later, the Washington Post published an article which alleges possible conflicts of interest affecting Mr Rattner in his current position as "automobile czar,"

The questions around Quadrangle and Rattner follow others that came to light soon after he emerged as a candidate to lead the Obama administration's efforts to prop up Chrysler and General Motors.

Quadrangle was, at least indirectly, previously involved in a deal involving Chrysler's majority owner, Cerberus Capital Management, a private equity firm.

That connection has led some Chrysler investors to doubt whether Rattner can decide without bias how the government should aid Chrysler.

In the summer of 2007, Quadrangle purchased Dennis Publishing, the owner of magazines including Maxim and Blender. The estimated price was $250 million.

Quadrangle's new magazine company was renamed Alpha Media and it took a loan of $125 million, much of it coming from Cerberus.

A year after Quadrangle's purchase, the publishing company's profits began to plummet.

The company announced last month that it would cease publication of its Blender magazine. Quadrangle has written the Alpha Media investment down to zero on its books, and Cerberus, the company's major creditor, is now effectively in control of Alpha, a person familiar with the matter said.

This week, a NY Times article revealed that Mr Rattner and Quadrangle are facing a wider investigation, and may be a target of investor lawsuits:

Two months after Steven Rattner left Wall Street for Washington, his private investment company is facing a widening investigation into corruption in public pension funds — and fighting for its future.

As state and federal authorities examine Mr. Rattner’s dealings with the New York State retirement fund, questions are emerging about his efforts to gain business from several other public funds, including ones in New Mexico and New York City. His private investment firm, the Quadrangle Group, is moving to calm anxious pension managers, who have entrusted the firm with hundreds of millions of dollars.

Mr. Rattner, who is leading the Obama administration’s efforts to revamp the auto industry, has left his small but prominent firm in a bind. Because he was integral to Quadrangle, investors can try to withhold additional money that they have pledged to the firm now that he has left.

No charges have been filed against Mr. Rattner, who did not respond to e-mail messages on Tuesday, or against Quadrangle, whose executives declined to comment.

While Quadrangle’s funds have not suffered as much as some other private equity funds, its investors have suffered losses in other parts of their portfolios. Some of them might try to capitalize on the inquiry to avoid making good on their pledges.

Another crucial question, however, is whether money from one Quadrangle fund was used to lure investors to a second fund. That possibility that might expose Quadrangle to investor lawsuits.

Furthermore, a Washington Post article raised the question of a failure of honest disclosure:

Government officials are expanding their investigation of Quadrangle, the private-equity firm founded by the Obama administration's lead auto negotiator, as new details emerge about an alleged kickback scheme involving the New York state pension fund.

On Wednesday, the New York City Comptroller William C. Thompson Jr. said he is working with the state's attorney general, Andrew M. Cuomo, to determine whether the city's pension funds were 'intentionally misled or deceived' by Quadrangle's failure to disclose the use of a middleman who has since been indicted, Hank Morris.

New York City's comptroller on Wednesday said Quadrangle never disclosed that it had paid Morris fees in connection with the city pension funds' investment in Quadrangle. The city invested $85 million in 2005 and $40 million in 2006.

The city has a rule that use of placement agents must be disclosed, but that rule was implemented in 2008 and does not apply to the Quadrangle investments.

But as part of the due diligence for receiving the investment, Quadrangle said in writing at the time that it used only two placement agents, Monument Group and London-based Helix Associates, the comptroller's office said.

'We take any ethical lapses by our managers seriously and will consider any remedies available to investors,' Thompson, the city's comptroller, said in a statement.

In response to all this, New York state government officials decided to ban middle-men from influence over pension fund investment decisions, according to the Wall Street Journal:

New York state said its public pension fund, one of the nation's largest, would ban the use of middlemen to help private-equity funds and other investors secure its business.

The move marked a pivotal development in a burgeoning controversy that has grown from a local corruption probe to a broader examination of the tactics that investment firms used to win lucrative business from vast public pension pools.

In most states, charging placement fees is legal if they are disclosed as required. But potential conflicts of interest are rife, especially for officials with a legal obligation to make informed, well-intended decisions about how pension-fund money is spent. Lawyers say a gray area emerges when finder's fees are paid to individuals or firms that do little more than trade on their access to public-pension-fund executives.

Such alleged behavior is at the heart of the scandal unfolding in New York. The state attorney general and the SEC have accused a former top fund official and a political adviser of giving investment funds access to billions of dollars of state pension money, in exchange for kickbacks and other payments for personal and political gain. One such middleman already has pleaded guilty to securities-fraud charges.

Some officials across the country have expressed concern about so-called pay-to-play practices -- that is, paying to influence people who direct the investments of public-employee retirement funds. Pay-to-play can range from illegal kickbacks, which in some instances have led to jail time, to legal activities such as campaign contributions to elected officials on the boards of pension funds. Pension funds are especially vulnerable to such accusations because their boards are often populated by elected officials or people with limited financial experience who need to rely heavily on outside advisers.

New York state's comptroller, Thomas DiNapoli, said that in light of the allegations contained in the case brought by the state's attorney general and the SEC, 'the best way to restore the pension fund's reputation is to say we won't be involved with any transactions that involved placement agents.'

Meanwhile, several commentators raised questions about Mr Rattner's suitability to be "automobile czar."

David Rothkopf, the author of Superclass, dubbed Mr Rattner the "kickback czar" on the Foreign Policy blog,

Are you joking? The Obama Administration somehow thought that it was okay to give a pass to Steve Rattner? They thought it was okay to appoint a guy to a key job after he apparently acknowledged to them that he was under investigation for providing a million dollar payment to pension consultant in exchange for receiving an assignment to manage a big chunk of pension fund money for New York State?

They thought it was okay in the middle of a justified surge of global disgust with Wall Street to embrace a big time Wall Street player who is smart enough to be arguing the legal technicalities of the transaction but not smart enough to recognize that it might just seem to be sleazy, dubious and a gross disservice to the people who were depending on the State to use appropriate methods and metrics to find stewards for their retirement money?

They even thought it was okay when part of the deal involved payments to support a movie called 'Chooch.' (What’s worse than bad ethics and bad taste all wrapped up into one sordid exchange? The New York Post called 'Chooch' which scored an amazing 00 rating from Rotten Tomatoes “the kind of vanity project that gives amateurs a bad name.”) What's more they did all this while giving Rattner the job of auto czar for which he had no material auto industry experience? I thought the way high ethical standards worked was that you didn't just bar people convicted of crimes, you tried to weed out people who had done things that were wrong or contrary to the public interest.

On BlackStarNews, Edward Manfredonia wrote:

I believed Rattner’s efforts to take the Times private should have disqualified him from an appointment with the Obama Administration; especially the key post of trying to stabilize the collapsing auto industry.

The White House still insists that the Administration fully supports Rattner; that reminds me of Bush proclaiming backing for Don Rumsfeld when it was clear he should have been shown the door as defense secretary.

Here's why Rattner deserves the boot.

An even more egregious form of activity that what I previously covered has become public. Rattner, who has extensive ties to Bill and Hillary Clinton, has been identified in several published news reports as the Quadrangle Fund executive who paid $1.1 million to receive more than $100 million from New York State’s multi-billion dollar pension fund to manage. The manner in which the payments were made leaves no doubt that they were meant for 'pay to play', which is illegal in my opinion.

Not surprisingly, a NY Times editorial was milder, but did allow,

Mr. Rattner showed some bad judgment in the 'Chooch' deal, and the public has a right to expect more of him in his new, highly sensitive position.

It's an interesting story, with implications in many areas, and it has hardly played out. Anyone reading this far is probably wondering, however, what this has to do with leadership, governance, and ethics in health care. None of the articles quoted above mentioned anything related to health care, or academics for that matter.

Here is where I pull the rabbit out of the hat.

Steven Rattner, in fact, has an important leadership position relevant to academics, and to academic health care. He is a member of Brown University's Board of Fellows, the "upper house" in the university's bicameral board of trustees, called the Brown Corporation. Brown University includes the Alpert Medical School, and the Division of Biology and Medicine. (Full disclosure: I am an alumnus of the College at Brown, and of the Medical School. I am a former full-time Brown faculty member, and currently a voluntary Clinical Associate Professor.)

And thus the issue here is really about the anechoic effect. Even though this convoluted case raises issues about Mr Rattner's role at Brown analogous to the issues it raises about his role as "automobile czar," there has been to date not even any media mention of his role at Brown, much less discussion of its implications for the university, academic leadership and governance, etc.

To survey the local coverage, the Providence Journal has not published any relevant news stories so far. It did print an op-ed questioning Mr Rattner's suitability for the "automobile czar" position, which had to do with the lack of sympathy an "investment banker" might have for the United Auto Workers. The Boston Globe ran a story from the Washington Post about the case, but one that had nothing on the local, or the academic angle. The Brown Daily Herald published a two news stories (here and here) about Mr Rattner's appointment as "automobile czar," which did note he is a "corporation member," but has not covered the current controversy. I am aware of no recent open discussion, or any discussion at all of Mr Rattner as a member of the Board of Fellows, in light of the recent unpleasantness.

Thus, our local angle on the New York pension/ placement agents/ Quadrangle/ "Chooch" affair mainly demonstrates how at many academic institutions, it is simply not done to bring up issues that question leadership and governance, especially at the highest levels.

Parenthetically, we have posted many times, most recently here, about the leadership and governance of Dartmouth College. Some might have interpreted these posts as hostile to that institution. They were anything but. In fact, it has only been possible to discuss leadership and governance at Dartmouth so thoroughly because that institution is much more open about its leadership and governance than is the typical US academic institution. Half of the he Dartmouth Board of Trustees, as we noted, used to be elected by vote of the alumni. The alumni could nominate their own candidates for the Board, through a petition process. The successful attempt to decrease the overall proportion of elected Trustees sparked a tremendous amount of open discussion and debate. Issues of leadership and governance at Dartmouth seem to be frequently discussed in local publications, on blogs, and sometimes even in the national media. I suspect that a governance system at Dartmouth marked by more than average representativeness and accountability has lead to much more vigorous debate and discussion of academic governance and leadership than occurs at more typical universities. (Note that even after the "board packing," Dartmouth still has a larger proportion of alumni-elected trustees than does the typical university, and it is still possible for alumni to put people on the ballot via petition.)

Brown University, on the other hand, is lead by a Corporation most of whose members are appointed by the Corporation itself. While a minority (14 of 42) of the Board of Trustees (the lower house) of the Corporation are elected by alumni, to my knowledge, all the election candidates are hand-picked by the Brown Alumni Association, and there is no provision for petition candidates. Although a few fiesty students occasionally call for more light to shine on the Brown Corporation, (e.g., see here), for the most part, questioning the leadership and governance of the university is simply not done. Thus, Brown seems to be typical of most major US academic organizations.

However, more transparent, accountable, governance, clearly guided by ethical principles and the organization's mission might allow US academia, and academic medicine to address some of the problems that we too often have opportunities to discuss on Health Care Renewal.


Anonymous 2nd said...

The interesting contrast between the boards of Brown and Dartmouth is unfortunately based on a misconception.

No proportion of the Dartmouth board is elected by a vote of alumni. The election you refer to is a vote on a nominee, whom the board may then elect as part of its responsibility to elect all but two of the trustees. The board is self-perpetuating, and all but two of the trustees are appointed by the corporation itself.

In no case have even the alumni nominees amounted to "half" of the board. They started with fewer than 5/12 of nominations in 1876, moved to 5/12 in 1891, then 7/16 in 1961, 8/18 in 2003, and 8/23 in 2008.

Thank you.

Roy M. Poses MD said...

As I have noted in comments on this post:
and this post:
"Anonymous 2nd" has steadfastly refused to reveal his/her identity, giving as his/her only reason that he/she does not want to be insulted by name, but wants only to be judged by the merits of his/her arguments.

However, he/she persistently makes factual assertions without providing any evidence to substantiate them. He/she has repeatedly denied that alumni at Dartmouth elect alumni trustees, even though most media accounts say that they do. He/she has not supplied any evidence to back this assertion. Why should we take the word of an unknown person or persons without any evidence to back it up?

Anonymous 2nd said...

Is it just me, or is the traditional format of a discussion being turned on its head here? You are the one making the counterintuitive assertions. I then challenge them on the basis that they lack any evidence or that the evidence is demonstrably misleading. Instead of then defending your assertions, finding better evidence, or conceding defeat as need be, you seem to get off the track by asking me for evidence – of the status quo. I don't need evidence to prove the way the world works, it is you who needs to come up with evidence that the board is not self-perpetuating.

Nevertheless, I will once more provide the evidence proving conclusively that your contentions regarding alumni election of half the board are baseless:

1. The Dartmouth Charter. Note the part where it says the board elects trustees by majority vote. Alumni are not mentioned anywhere.

2. The 1891 Resolution is quoted several places including in minutes of an 1891 meeting of the alumni. You can tell from reading it that the resolution was a statement of policy issued unilaterally by the board and not some kind of contract. It has been changed several times since 1891, including in 1961 and 2003, all by unilateral amendment by the board. It states that alumni "may nominate" a specific number of suitable candidates for the board to elect. No proportions are mentioned. It directly contradicts a number of the terms of the "contract" imagined by the lawsuit. The minutes add almost nothing to the Resolution and show clearly that the alumni of the time did not think they had formed a binding contract.

3. The 2007 Governance Report. This contains a good summary of how candidates are nominated by different processes before the board votes on whether to elect them as above. It points out that five out of twelve, seven out of sixteen, and eight out of eighteen are not "half" of the board.

4. Dartmouth's motion to dismiss the lawsuit, and its exhibits. It shows clearly why the idea of a "contract" to purchase a "right" to "elect" "half" of the board is without foundation. The suit was withdrawn before the court could examine the facts of the case.

It is common for cursory and superficial MSM descriptions of Dartmouth to say that alumni select some of the board members. Since you are attempting to be more precise than that, however, and especially since you are offering a detailed analysis of the board's choices and procedures in order to offer some kind of judgment – even if it is a mildly-relevant reference to the financial crisis – you really should get the facts straight.

Roy M. Poses MD said...

"Anonymous 2nd," if you are going to cite a long and complex document in support of your assertions, please provide relevant quotes and explain how they support your position.

I would note that nearly all media coverage and discussion of the leadership and governance of Dartmouth suggest that the alumni de facto, if not de jure, used to elect half of the members of the Board of Trustees. It appears that, for example, Mr Zywicki got his board seat because a majority of the alumni supported him, not because he was picked by the previous Board of Trustees. In any case, why would so much of the discussion of this case be wrong, and "Anonymous 2nd" be right?

Finally, does this have anything to do with the issues I discussed in the post above?

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."

"Anonymous 2nd," are you John Engleman?

Anonymous 2nd said...

Dr. Poses,

I am not sure why I should supply any citations at all when you are the one advocating the contentious and counterintuitive departure from the norm. Shouldn't it be up to you to provide some credible evidence (i.e. not blog posts from the last few years) that supports your claim that the board of trustees has stopped electing its own members? You align yourself with those who claim the board contracted to sell a specific proportion of seats to alumni for all time, but you haven't quoted the contract, set out its terms, or shown that it was ever created or would be legal or enforceable if it was. Until you come up with some proof, we have no reason to abandon the presumptions that the board is bound by and abides by the restrictions in its charter and that its normal decisions are legitimate.

Zywicki got his seat on the board because the board appointed him following a nomination by alumni. He served only one term because the board declined to appoint him again. Most media do suggest that alumni de facto elected half of the board, but that suggestion was and is wrong on its face. Before the controversy, alumni nominated 8 of 18 trustees for election by the board. I do not know why so much of the discussion about this is so inaccurate, except that conservative bloggers who are trying to create or expand rights for alumni (themselves, in many cases) are much better at spreading misinformation.

You have made Dartmouth governance relevant by repeating the erroneous claims about it in a variety of posts. Some but not all of the relevant quotations you requested:

And also that the said trustees and their successors, or the major part of any seven or more of them, which shall convene for that purpose, as is above directed, as often as one or more of said trustees shall die, or by removal or otherwise shall, according to their judgment, become unfit or incapable to serve the interests of said college, do ... elect and appoint such trustee or trustees as shall supply the place of him or them.That is where the government uses the charter to give the corporation the power to elect future trustees by majority vote. The charter does not permit any other entity, including an alumni association, to elect trustees. The board has amended its charter a few times. None of those amendments gives away the election authority listed above. The board in fact specifically declined to adopt an amendment in 1891 that would have given alumni the legal right to elect several trustees. Absent an amendment, the board is stuck with what's in the charter, and anyone who claims some kind of back-room oral agreement to get around the charter is claiming an illegal contract.

And we [the governor] do further ... grant unto the said trustees of Dartmouth College that they, and their successors, or the major part of any seven of them ... may make ... such ordinances, orders and laws, as may tend to the good and wholesome government of the said college ... not excluding any person of any religious denomination whatsoever, from free and equal liberty and advantage of education.That is where the government uses the charter to give the corporation the power to establish "bylaws" by majority vote. The charter does not permit any other entity, including an alumni association, to change the board's bylaws. The board has amended its bylaws by resolution dozens of times. For more than 100 years, whatever rules governed nomination required a board committee to nominate potential trustees for election as stated above. The board amended those rules in 1876 to allow alumni to nominate potential trustees for election by the board. The board amended those rules again in 1891 with this resolution:

1. Resolved; That the graduates of the College, the Thayer School, and the Chandler School of at least five years standing, may nominate a suitable person for election to each of the give Trusteeships next becoming vacant on the Board of Trustees of the College (excepting those held by the Governor and President) and may so nominate for the election of his successors in such Trusteeship.

2. And Resolved; That whenever any such vacancy shall occur in such Trusteeship or the succession thereto, the Trustees will take no action to fill the same until the expiration of three months after notice to the Secretary of the Alumni of the occurrence of such vacancy unless a nomination therefore shall be sooner presented by the Alumni to said Trustees.

3. And Resolved; That this plan of nomination shall be taken and held to supersede the plan heretofore adopted in 1876.
This resolution has been amended by the board. There were 12 trustees at the time the board gave permission for the "five" nominations. In 1961 the board effectively amended "five" to read "seven," and in 2003 to read "eight." At no time has the board resolved to let anyone "elect" trustees, or to nominate "half" of the board, as if such a resolution could have any effect contrary to the charter anyway. The proponents of the oral contract theory do not claim that the 1891 resolution is a binding contract, and they tend to avoid quoting it because it stands in direct contradiction to their theory.

The board remains bound by the traditional laws, rules, and practices, as the Governance report states:

The Dartmouth Board, then, has traditionally included two Trustees who serve by virtue of their office (the Governor of New Hampshire and the President of the College) and other elected trustees selected by the Board. [7]

Notwithstanding the distinction between Charter Trustees and Alumni Trustees, the Charter of Dartmouth College makes it clear that the Board is responsible for the appointment of "Successors" (other than the Governor) upon the occurrence of a Trustee vacancy. The Charter also makes clear -- and has always been interpreted to mean -- that all Trustees other than the Governor are elected by the Board. The process referred to in this report as the Alumni Trustee “nomination” or “selection” process is a process by which nominees for Alumni Trustee seats are identified and presented to the Board. The Board is legally empowered to elect those nominees but it is not required to do so. In fact, as a matter of its authority under the Charter, the Board may elect another nominee if it determines in the exercise of its judgment that doing so would be in the best interests of the College. [8-9]

Like other resolutions, the 1891 resolution is not permanently binding on the Board. Accordingly, the Board is free to amend, supersede, or rescind the 1891 resolution by subsequent Board action in the exercise of its fiduciary duty, just as the Board modified the 1876 plan in 1891.

Under Dartmouth’s Charter and as a fundamental principle of nonprofit governance, the election of Board members is a basic Board responsibility that cannot be delegated. While parity has existed for a long time and represents an important part of Dartmouth history, it is no different from any other feature of institutional governance at Dartmouth: if the Board determines that circumstances warrant change, then the Board is obligated to consider any changes that it believes would be in the College’s best interest.

Neither of the lawsuits has claimed that the board violated any fiduciary duty or strayed from its mission in any way. Both claim that the members of the board in 1891 made a perpetual oral contract to sell election rights.

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.

Finally, please note that none of this is really relevant to my lengthy post above, which is about the governance of Brown. My points in the post above do not depend upon whether alumni board members at Dartmouth were elected or selected by an election and then subject to approval of the board majority.