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October 2, 2007, Conference Call
Participating: David Gale, Alex Mooney, Bill Hutchinson, David Spalding, Marji Ross, Frank Gado, Tim Dreisbach, Bert Boles
Absent: Kate Aiken, Kathryn Wallop
Proxy: Cheryl Bascomb to Bill Hutchinson
1. Old Business
a. Minutes of 9/4/07
b. Minutes of 9/20/07
c. David Gales tabled motion from 9/20/07
2. New Business
a. Frank's first motion
b. Frank's second motion
The Executive Committee postponed approval the 9/4/07 minutes until Frank has a chance to review them.Frank reported having problems with his email server.Approval of the 9/20/07 minutes was tabled until the October 18, 2007 conference call.David Spalding will reformat those minutes.David Gale requested that moving forward the minutes be made available sooner.David Spalding agreed to do his best in that regard.
After a brief discussion, David Gale moved and Tim seconded that the committee should discuss Frank's two motions before reopening its discussion on David Gale's tabled motion (9/20/07).
Frank's first motion:
WHEREAS, the board of trustees enacted resolutions on September 8, 2007 that would reduce the proportion of trustees chosen by the alumni to less than one-third of Dartmouth's board, and a committee of the board announced that the proportion of "alumni trustees" may be reduced still further in the future;
WHEREAS, the Executive Committee believes that the board's willingness to diminish the responsibility of alumni for Dartmouth's governance will ill serve the College by depriving it of the myriad benefits that alumni selection of trustees provides;
WHEREAS, the Executive Committee believes it is in the best interests of Dartmouth College and its alumni that a judicial opinion be obtained as to the propriety of the board's planned governance changes, and to ensure to the greatest extent possible that the responsibility of alumni for Dartmouth College's governance is not diminished;
Whereas, members of this Executive Committee reached out to the Trustees asking whether they were open to further negotiation on the issue of parity between the number of alumni-elected and charter trustees, and the Trustees said they were not flexible on this decision;
Whereas, a further request was made to the Trustees to delay implementation of their decision by refraining from choosing new charter trustees at the November meeting, in order to provide a chance for mediation, and the Trustees refused to provide assurance of such forbearance;
WHEREFORE, it is resolved that Frank Gado shall continue as Liaison for Legal Affairs ("the Liaison"), and that the Executive Committee hereby delegates to the Liaison the full power and authority to oversee and direct the work of outside counsel, on behalf of the Association of Alumni, to seek (a) a declaration of the Association's right to choose one-half of Dartmouth's non-ex officio trustees through the Association's chosen selection process; (b) an injunction (i) barring the College from adding charter trustees to its board, unless it seats an equal number of alumni trustees chosen by the Association, and (ii) requiring the College to continue seating alumni trustees chosen by the Association; (c) an order that the College specifically perform its contractual obligations and promises by seating equal numbers of charter and alumni trustees chosen by the Association; and (d) such other and further relief as the Court deems just.
Bert reported that as an individual he had talked to Trustees John Donahoe and Christine Bucklin.In both cases, the conversations were cordial and respectful.The disagreement is based on two different premises of alumni trustees.Bert respects their reasoning, but starts from a different premise.The fundamental request was whether they would delay naming new charter trustees in November to allow time for dialog.When asked if they would commit in writing to doing so, neither was able to.Bert feels our constituents are losing an important right and he doesn't feel we can let that happen.Bert said those differences on alumni trustees are not legally based.
Bill pointed out we're shifting from a policy dispute to an argument that this is legally actionable.Bert did not talk legal aspects with them.The question really was, would they mediate on the parity question.Having read the report, Bert felt he could persuade them that continued parity did not go against their goals.Their premises are: 1). The College is doing fine right now; 2). It's more damaging to the College's reputation and to fundraising than it is beneficial to have the debates.Bert disagrees because he feels the College is heading in some wrong directions and fundraising is not an issue.So, the position we need to safeguard for our constituents is in danger.
Bill suggested Bert has not made a legal argument.Tim felt that wasn't what Bert tried to do; rather he tried to argue for parity and a change to the election process.Since they won't change back, we now shift to a legal answer because they have both made a bad policy decision and acted illegally.David Gale indicated the Board won't breech the contract until they seat trustees.They have repudiated alumni rights and we can't allow that without taking action.Tim wants the minutes to reflect Bert's discussions with John and Christine.Cheryl Bascomb also reached out to Christine and received the same answer.Bill pointed out that these were informal contacts, not formal ones.Frank felt these were attempts to come to a reasonable agreement since we all have the College's interests at heart.Tim wants the minutes to show that we did reach out again on parity.Bert agreed they were informal contacts.Bert did tell Christine on Friday that we were likely to vote on Tuesday night to seek injunctive relief and he asked that she try to get the Board to provide limited assurance on not adding trustees in November.See Bert's email of Friday and Cheryl's email of Thursday, which are appended.
This has been discussed with lawyers.David Gale said it's based on Frank's research on the 1891 agreement as a contractual obligation or not with alumni.Tim has also met Williams & Connolly in person.Tim reported they believe it is a strong and legitimate basis. Tim cannot share that with David Spalding due to a conflict of interest.David Spalding inquired if all other members of the Executive Committee, other than himself, have had a chance to discuss this basis with Williams & Connolly as Tim noted anyone could call the partners.
Bill was surprised that this invitation had not come up in earlier discussions.He recalled that the firm chose to talk with one person.Frank noted in addition to himself, with whom W&C spoke on the Executive Committee was at his discretion.
David Spalding felt that it would be important for other members of the committee to weigh in on the basis for litigation.He asked for Bert's opinion.David Gale noted if people feel there is a strong case they can choose to vote yes, if not, they can vote no.He added that regardless of the strength of the case, we need to do this. If we don't amend our constitution, we will lose our ability to run trustee elections.There is a significant portion of alumni who are upset by the Board's recent decision and they probably won't go with any amendment if we look as if we are caving in to the Board.It needs to get sorted out whether or not this is a legal issue and we need an answer from court.Marji noted that there are other things we can do if this fails, such as withholding funds or using the bully pulpit.
Bill commented that he had been part of a similar effort which had been an abject failure.Even that group thought they were on solid ground going into litigation. In their case the court had levied sanctions.Was the present AoA prepared to have sanctions levied against it?And how was the current case different from earlier litigation that had been a failure?
Frank believes there will be no sanctions as he had discussed that eventuality with Williams & Connolly already and they were convinced the case was solid.
Bill, recalled that his group had hoped to win.In hindsight it was not well done.Had he had better counsel he may not have been a part of it.He recalled they did not have a legal basis and neither did the current AoA. He reminded the executive committee that the New Hampshire Superior Court had called the litigation he had been involved with frivolous.It came at the end of a series of other law suits.
Frank inquired if Bill was suggesting any litigation against Dartmouth in a New Hampshire court would lose?
Bill felt members of the AoA were basing their litigation on complaints rather than on legal grounds. The College has not broken a law.It's a beef, and AoA members want to ask the Court to settle that dispute where the College and the BOT have researched in depth and feel they are on very solid ground. You will have your hat handed to you.
David Gale countered that if the 1891 agreement carried legal weight regarding parity, the Board's recent action would be illegal.
Tim stated that we should just ask the Court for an opinion on whether or not the 1891 agreement was a legal contract or not.Bill pointed out that that action was what is called filing a lawsuit. It's not a simple matter of asking a question and walking away with an answer.Tim was not deterred by the semantics and pressed that the paper be filed so that the answer could be given.
Bert pointed out that he could not provide counsel re William's & Connolly's advice but did want to share his assessment of the current situation:1). whether or not this has escalated far enough to sue; 2). the potential for sanctions and their cost; 3). what are the merits and do we have a case? Regarding the first two points he did not like suing is alma mater; however, not being able to go any further with the Trustees he felt he owed it to his constituents and to the College's best interest to bring a law suit if it must come to that.He was also willing take the risk with sanctions.After reading Ed Haldeman's emails, the Governance Committee Report, Kate Stith-Cabrana's thoughtful piece, the 1891 agreement and Frank's research, he feels AoA has a case.It comes down to the intent of the 1891 agreement.Was there an intent of the trustees to be bound projecting forward with its 1891 agreement.Common sense and the historical record indicate, yes.Williams & Connolly is a very reputable law firm in Bert's opinion, which makes him feel the AoA has a good legal case.It gives him comfort to go forward and support Frank's motion.
Bill expressed his concern regarding funding legal fees.Frank felt had already been covered; however, he and Tim stated there was adequate assurance from the firm that it would not financially obligate the association for any legal fees it incurred should it move forward with the law suit on AoA's behalf.Frank assured the committee that the Association would be the firm's client and not some unknown entity or entities.Frank noted that he does not know who is paying the legal fees.He never wanted to be brought into that discussion. He assumes the funds may be from more than one person, but does not know.David Gale noted that we can't do what the Board requests of us without first getting a legal opinion regarding parity.
Bill asked how this serves those alumni you represent who feel the Board is perfectly right.Bert felt most did not.At a recent event in Los Angeles, some in the audience who claimed never to have voted for a petition candidate still felt removing parity would be outrageous.Bert believes our constituents are deeply offended.
Bill said that he wished they hadn't messed with it, but more due to the controversy.He doesn't think you have a snowball's chance to win a lawsuit.Tim wondered if that is due to charter or it's not an agreement.Bill said that he believes it's not an agreement.A new resolution can change this.Tim stated that there are very bright lawyers on both sides so it won't be a frivolous case.The seriousness of the issue merits the case and the support we have makes it worth debating.
Frank called the question.
Tim asked David Spalding if he would recuse himself since he had two masters.David Spalding said he would not since all alumni voting for him knew he might face a conflict of interest like this.
Voting "yes": David Gale, Alex Mooney, Marji Ross, Frank Gado, Tim Dreisbach, Bert Boles
Voting "no": Bill Hutchinson, Cheryl Bascomb, David Spalding
Frank's second motion:
Frank moved his second motion which was seconded by Tim Dreisbach.
I move issuance of the attached statement:
STATEMENT OF THE ASSOCIATION OF ALUMNI OF DARTMOUTH COLLEGE
HANOVER, N.H.--The Association of Alumni of Dartmouth College has decided to seek a judicial opinion as to the propriety of planned governance changes that the board of trustees announced on September 8, 2007.
The trustees announced that they will expand Dartmouth's eighteen-member board by adding eight new trustees to be chosen solely by the board itself. The trustees' plan would reduce from one-half to one-third the percentage of trustees elected by Dartmouth alumni (not counting New Hampshire's governor and Dartmouth's president, who serve ex officio). The trustees' plan also states that the trustees may consider reducing the percentage of "alumni trustees" even further in the future.
Under an 1891 agreement between the Association and the College, one-half of Dartmouth's trustees are to be chosen by the alumni.
The Association's Executive Committee believes that the selection of one-half of the trustees by Dartmouth alumni remains vital to ensure Dartmouth College's progress, prominence, and usefulness as America's finest undergraduate College. Alumni selection of trustees encourages Dartmouth alumni to take a lively interest in the College's affairs and to devote their attention to its needs; ensures that the College benefits from the advice and experience of its great body of successful graduates; and ensures that those who love Dartmouth the most--its sons and daughters--have responsibility for its future.
The Executive Committee believes it has a duty to act in the best interests of Dartmouth College and its alumni, and it believes that it can best serve those interests by seeking a judicial opinion as to the propriety of the board's planned governance changes, and by ensuring to the greatest extent possible that the responsibility of alumni for Dartmouth College's governance is not diminished.
Alex dropped off the call at 9:15 p.m. and gave his proxy to Frank.
Frank said he would issue the statement to alumni broadly.David Spalding said the College wouldn't post it.Bert raised an issue because he believes Dartmouth is not the pre-eminent college now, but we will get there again.Tim counseled against a change.Discussion ensued.
The question was called:voting "yes": David Gale, Alex Mooney, Marji Ross, Frank Gado, Tim Dreisbach, Bert Boles; voting "no": Bill Hutchinson, Cheryl Bascomb, David Spalding.
The committee returned to a discussion of David Gale's motion of 9/20/07.
Frank would support the motion although he's not sure it will be successful.He feels it's a good idea, but it needs to be better researched to be designed in the best way possible.We've been distracted with these other items.Has it cleared all legal hurdles?
David Gale said he's not hopeful this would be enough to change the board's mind, but it would be good to have an alternative for those who want to support the College. It is good for us to do this for these alumni.
Cheryl Bascomb joined at 9:28.
David Gale agreed to amending his motion so it needs to read as follows.
Moved, that the Association of Alumni Executive Committee authorize David Gale to investigate creating a Trust, managed by an independent trust firm, to which Dartmouth's alumni may donate; the funds in this Trust to be donated to the College at such time as the Board of Trustees is comprised of an equal number of members elected by the Board ("charter Trustees") and elected by a vote of all voting alumni ("alumni Trustees").Further, that any interest from this Trust be used as the Association of Alumni Executive Committee deems appropriate, including, but not limited to, meeting normal operating expenses of the Association and scholarship grants to undergraduate students.Further, that the amount of funds in this Trust be announced to alumni in the Secretary/Treasurer's report at each annual meeting, and subsequently communicated directly to the Board of Trustees.And, further, that the existence of this Trust, and instructions for donating money to it, be announced annually to all alumni through whatever means deemed appropriate by the Executive Committee of the Association.
Frank suggested that David talk to John MacGovern given the Hanover Institute's efforts in this regard.
David moved his amended motion and Tim Dreisbach seconded it.Votes cast: six yes (David Gale, Alex Mooney, Marji Ross, Frank Gado, Tim Dreisbach, Bert Boles; three no (Bill Hutchinson, David Spalding, Cheryl Bascomb).
Frank brought up his Dartmouth Alumni Magazine motion again which Bert is to rewrite.
Tim said the bank account has $3,700 in it.Marji has said the cost of the mailing Frank funded is reasonable but she hasn't forwarded her cost estimates.Tim suggested Frank get paid in part.Frank asked we try to get the word out to ask for money.Discussion ensued on reimbursement.
Tim noted a related issue is an Association website.Do we want our own?Commitment is to have one and maintain it.Would the College link?
Frank raised his concerns again about the College's use of vox as a verb.
The meeting was adjourned at 10:00 p.m.
Next scheduled conference call: Thursday, October 18 at noon.Dial 866 420-6168 and enter conference code: 6462312.
Association of Alumni Secretary-Treasurer
Vice President for Alumni Relations