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20 comments:
Thanks, David.
You can tell how strong the case is by looking at page 3. Come on, a thirteen-year old unreported case from the Nevada federal district? In a lawsuit to be decided under New Hampshire (state) law? Is the Association joking?
The thing is so weird. Why, as a matter of strategy, would the AoA say that they have the right "to appoint one-half of Dartmouth's board" (page 5)? Everybody knows that 5 is not half of 12. It's a basic factual error that makes the Association executives look like idiots and opens them to criticism.
Always nice to see Anon picking semantic nits. "Half" is obviously the 5 of 10 non-ex-officio trustees.
The Gov of NH does not vote, and the President of the College can be expected to recuse himself from votes that concern him: like whether to fire Jim Wright for incompetence.
When the New York Times was reporting on the Board's decision, they similarly used "half" to describe the number of alumni trustees on the board. I think that does make sense, since ex officio members are often excluded when counting the membership of committees.
For example, in Dan Nelson's letter regarding the formation of the COS review committee, he said that Kate Burke would chair the committee and that April Thompson, director of Judicial Affairs and Ellen Arnold, the Associate General Counsel, would serve ex officio. Well, any administrator serving on the committee would fundamentally be serving ex officio. But Nelson's point was that April Thompson and Ellen Arnold won't be full members, and that was conveyed.
Boys... out of the nits please. Read with more care.
A NH court itself ruled that the agreement was valid, that alumni had a right to seat "half, seven members" of the board at a time when it had 7+7+2 total seats, and that the trustees must seat the persons elected by the alumni.
Anon 8:45 - Please tell us more. You are onto something other than nits.
Read the motion, especially p. 13.
The Administration says there is no legal basis for the alumni claim.
This is the same administration that said last spring that the reason for postponing the COS review was not to stall until after the authoring students graduated, but to await the new permanent dean. Now the review begins with acting deans.
For all of you complaining that others are looking too closely at the nits, just remember that this will be argued (and decided) by folks who do this stuff for a living. Most lawsuits are decided by based on the "nits." They matter...a lot.
I don't think an inaccuracy of 17 percent is a mere "nit" when the Association is basing some of its argument on "democracy" and the idea that its votes constitute some kind of check on the Board. The Association doesn't want to admit that the 1891 agreement gave it a permanent minority by design, and that nothing's changed except the relative size of its minority.
Describing 10/12 of the board as "the board" is misleading. The two ex officio trustees both vote (yes, even the Governor is permitted to vote, he did so in the 1980s, and could today). The governor is the only ex officio trustee in the charter; the president is such by tradition.
The Association's motion does admit in a footnote, as if 2/12 of the original board in the charter were merely an afterthought, that "In addition to the equal numbers of 'charter' and 'alumni' trustees, New Hampshire's governor and the College's president are deemed members of Dartmouth's board ex officio. For brevity and clarity, the Association may refer to the appointed (i.e. non-ex officio) trustees simply as 'the trustees' or 'the board.'"
I like that use of "deemed"-- as if the charter were merely to be taken under advisement.
Anon 8:45, page 13 of the motion refers to an unpublished order that is not binding on the current lawsuit. It's in a different court that is not superior to Grafton County's, and it's obiter dictum anyway -- words from the judge that are not the law.
The judge wrote those paragraphs even though he doesn't seem to have decided the case on the merits. Instead, he dismissed the claims of alumni without evaluating them. Even if he had actually evaluated the merits and found that a contract existed, only one of those parties is in the new litigation today -- the Board of Trustees. The law will not hold against the Board something it said in defense to a previous lawsuit brought by different parties.
The motion gives far too much credence to the hyperventilating headline-writers of the nineteenth century. Just because they used the word "suffrage" does not mean that anyone thought the alumni were going to be able to buy the legal right to vote for trustees. As pointed out in the Tobias book, also cited in the motion, the alumni put President Bartlett "on trial" for his actions -- but it was no more a legal "trial" than any bunch of people arguing in a hotel ballroom could be.
Speaking of nit-picking, the Association's entire lawsuit depends on reading "five" to mean "half of the elected" trustees. Isn't that a petty distinction? But everything's riding on it.
anon did not read the prior court's words. it refered to half as seven, not five. clearly a recognition of parity as the board expanded.
What the court said about "half" does not matter because it did not say it in a binding decision on the merits.
It's the alumni who are disingenuously saying that alumni trustees make up "half" the board. Only a careful reading of the motion reveals that there are also two other trustees, and that the recent action has not dropped the alumni from "half" to one third of the board -- during the fraction of Dartmouth's history in which alumni trustees have even existed, they have always intentionally been less than half the board. A permanent minority.
But 10:35, I completely agree that alumni Trustees have never been a majority -- and if the Board had done nothing at all, they would have stayed in a minority, without the bad publicity, divisiveness, and expense of a lawsuit, which now probably can't be avoided.
Why do you feel the Board went to so much additional trouble when it didn't need to?
John, Wright went to this trouble because he could see that the four petition trustees would soon become eight, and then if they peel off only one or two of his hand-chosen Charter trustee allies, he'd be out of a job, and unable to choose his own successor (hint: rhymes with "Dolt")
"Why do you feel the Board went to so much additional trouble when it didn't need to?"
The board designated four particular seats as Charter rather than Alumni Trustees because "Sixteen is the minimum number of Charter Trustee positions that we believe are necessary to provide the Board with the needed skills, capabilities, and diversity to match the breadth of Dartmouth’s programs and meet the challenges of higher education in the 21st century."
The board continued:
"Even with 16 Charter seats, Dartmouth has less ability than its competitors(who average 33 Charter-like seats) to make targeted Board appointments to meet specific needs. Expanding through an increase in Charter seats is necessary because while it is possible that the Alumni Trustee nomination process might produce a nominee who matches the College’s greatest needs, there is no assurance that it will do so."
Is there any part of that statement or the board's further explanations, none of which it needed to provide to the public, that is difficult to understand?
Yes. There is more they could have explained. Why could they not have designated 4 of the 8 as alumni-elected, and then made provisions to inform alumni as to the needs they are looking for at any particular time? Or if they need 8 seats for "sensitive" needs, and feel the expansion by 8 is a bare minimum, why not add 8 charter and 8 more thru alumni choice?
It is pretty obvious that the motivation for this "review" was the discomfort that petition trustees are apparently creating for the Board, and the discomfort some large donors have had with the raising of issues during elections. Peter Fahey reported as much during an address to Class Officers this past weekend.
"Why could they not have designated 4 of the 8 as alumni-elected, and then made provisions to inform alumni as to the needs they are looking for at any particular time?"
They could have done that. So do you think the availability of alternative choices is a legitimate criticism of a decision? Isn't that the essence of any decision, picking which alternatives not to follow?
The "motivations" you have discerned are all legitimate ones, and not even an illegitimate motivation would affect the validity of the board's decision. Are you confusing the board with a government?
What difference does it make why the board did what it did, or why you think it did what it did?
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