A Deadlocked Board

When four members of the eight-member Wayne State University Board of Governors sued the other four at the end of June, many outsiders looked on with concern for the institution’s ability to continue functioning.

That wasn't the start of the board's troubles, by any means; its members first divided deeply last fall over a contested move to renew President M. Roy Wilson's contract. Now, the deadlocked board seems no closer to reconciliation than it did weeks ago. However, some evidence suggests that the unique nature of the board -- a directly elected group with an even, not odd, number of members -- could be at the center of some of its problems.

The board members -- chosen in statewide elections to serve eight-year terms -- have fashioned themselves into two factions: four members supportive of Wilson and the four currently sitting on the other side, referred to often by parties close to the situation as “the plaintiffs.”

The plaintiffs got their name after the board’s most recent meeting in late June, which occurred while one board member, Anil Kumar, was on a vacation. The issue of a complicated real estate transaction, a deal on which the board was split, was added to the agenda. Three other board members chose to boycott the meeting due to Kumar’s absence, hoping to deprive the other members of a quorum.

However, the board’s other four members claimed quorum had been reached due to Wilson’s presence in an ex officio capacity, holding the meeting and voting in favor of the real estate deal and increasing tuition 3.2 percent.

Kumar and three other members of the board brought a lawsuit against Kim Trent, the board’s chair, and her supporters, stating that holding the meeting violated state open meeting regulations. A judge threw out much of the lawsuit last week, ruling in favor of the defendants and letting the decisions made at the June meeting stand. (Note: This article has been corrected from an earlier version to note that a judge had ruled in the lawsuit.)

Dana Thompson, a board member and plaintiff in the lawsuit, said Wilson and his supporters took the opportunity of Kumar’s vacation to ram through the real estate deal.

“For months, the administration was aware that one of our fellow governors, who was opposed to the real estate acquisition, would not be present at the scheduled meeting due to an out-of-the-country vacation he had planned prior to his election to the board,” Thompson said in an email. “Without Dr. Kumar present, our colleagues believed they could, once and for all, outvote us on an issue we had routinely opposed and defeated.”

The real estate deal involves Wilson’s attempts to acquire a property in Detroit to house university physicians. The deal was approved at the meeting for which the plaintiffs were absent.

However, both Thompson and Trent have said all these issues are part of a larger conflict that has been brewing within the board for many months.

A Board on the Outs

The Wayne State Board of Governors is one of a handful of governing boards in the country that is chosen directly in statewide elections, as opposed to appointed by state governors. Besides Michigan, only universities in Colorado, Nebraska and Nevada have elected governing boards. Wayne State’s board members serve eight-year terms, with at least two members up for re-election every year. Even within Michigan, only Wayne State, Michigan State University and the University of Michigan have elected boards. 

Michael Poliakoff, president of the American Council of Trustees and Alumni, says the ideal public university board has members with complementary skill sets: "a background in finance, a background in academic affairs, a background in student life, a background in auditing."

It's not that governors always aim for that when they select board members -- many slots are filled with donors, regardless of background -- "but it's certainly harder with elected boards," Poliakoff said.

Eric Lupher, president of the Citizens Research Council of Michigan, echoed this point, saying that appointed boards give governors the option to work in tandem with universities to determine what kind of person the board needs to help fill in experience gaps

“The difference between the elected and the appointed -- the elected boards, at least in Michigan, have tended to be either politically active people on their way out of politics … or people aspiring to higher office and this is a stepping-stone, and I don’t mean to diminish at all that they care about the university,” Lupher said. “But my observation with appointed boards is that a lot of the time when there’s a vacancy, the governor will be in touch with the university and talk about the assets the current board members bring and what is needed.”

Lupher said appointments more often lead to a board where the members are on the same page about the vision for the university, and with elected boards it is generally harder to build consensus.

“My sense of what’s going on at Wayne State is that it’s driven more by politics than by anything else -- there’s different visions of the university and how to get there, whereas if I think it was an appointed board, the conflicts wouldn’t raise to this level where [the board members] just refuse to convene or dismiss decisions that were made by a subset of the board,” Lupher said. “The politics of it takes it to a whole new level.”

Concerns over elected boards in Michigan aren’t new -- anger over the Michigan State board’s handling of the Larry Nassar scandal led to some lawmakers in 2018 attempting to change state law to put appointment power in the governor’s hands. The efforts were unsuccessful.

Being an elected board may not be the only issue facing Wayne State. The board is also made up of eight people, and its war has split the board right down the middle. Four members on one side refuse to cave, and the same is true on the other side.

A study of corporate boards conducted at Nanyang Technological University, while not an apples-to-apples comparison, revealed that boards with an odd number of members had higher scores on various performance metrics and better overall outcomes for the firm.

The fact that Wayne State’s board had exactly half of the members boycotting the board is what led to the other side holding a meeting claiming that Wilson’s presence constituted a quorum -- the decision that led to the lawsuit at the heart of the conflict.

Damaged Relationships

Trent said the beginning of the rift between the two factions within the board can be linked to a lame-duck vote last December. Then, Wilson’s contract was extended by the board -- before board members who had been elected in November could take their seats. However, Trent said she didn’t believe the Wayne State board’s issues were that much greater than those of other boards.

“There were some board members who did not want to extend [Wilson’s] contract,” Trent said. “Or they wanted to wait until the new board members were seated. However, at least one of the newly elected board members said they would have voted for him, so it’s not like [Wilson] wouldn’t have the votes anyway. But ever since then, we’ve had problems as a board with getting along. There’s been tremendous distrust.”

Thompson also pointed to the lame-duck vote as a “breaking point” for the relationships on the board.

“During the course of President Wilson’s tenure, he and his administration have shown a lack of transparency with all of the statewide elected and constitutionally mandated Wayne State University Board of Governors,” Thompson said. “The Wayne State Board of Governors is elected statewide by the citizens of Michigan for eight-year terms and hires the president of Wayne State University. This lame-duck session of the board insisted on President Wilson’s contract extension although his contract did not end until July 2020.”

Trent said issues between board members have been worsened by continued leaks to the press by “some board members.” Trent alleged that a board member leaked the fact that the board was in the beginning of talks with the Henry Ford Medical Center to create a partnership. After some board members expressed displeasure over the idea of the partnership, Trent said, those board members went to the press and claimed the deal was dead, prompting Henry Ford Medical Center to withdraw from the discussions.

“Board members don’t always get along, and they don’t always agree,” Trent said. “But what’s new in our dynamic is that for some reason we have board members who think it’s appropriate to go to the press or go public with their grievances instead of training to work them out within the board.”

Thompson, however, said that Trent’s allegations of press leaks coming from the plaintiff faction within the board were false.

This episode was just another in the long series of clashes leading to where the board currently stands.

How to Move Forward?

When asked how to mend the divide within the board, Thompson said definitively that it would require the opposing faction to begin behaving differently.

“The board can begin to mend the divide by having each board member recognize our constitutional duty to act as fiduciaries of the university,” Thompson said. “The entire board should schedule a special meeting to reconsider the issues purportedly voted upon without quorum at the June 21, 2019, meeting, giving the entire board the opportunity to vote on the issues that the defendants attempted to push through. The board’s fiduciary duties are to the citizens of Michigan, not to protect President Wilson at all costs.”

It’s unlikely the 2020 election will do anything to alleviate the divide among the board. Only two board members are up for re-election -- Trent and Sandra O’Brien -- both on opposite sides of the board’s war.

“Getting really good consulting services that can help people work through these differences that now involve a breakdown of trust and a deep level of suspicion may be one of the only ways forward,” Poliakoff said. “But it really depends on the board itself being willing to come together and recognize that they as fiduciaries have the ultimate responsibility for the well-being of the institution and that the public is watching.”

Trent said the board has had a number of retreats, with the aim of improving relations, that have ended positively, only for the relationships to sour again soon after.

“I think there’s a larger issue at stake -- larger than the lawsuit, larger than Roy Wilson. It’s about protecting the brand,” Trent said. “I don’t want to see our brand be tarnished by the actions of some board members who are entrusted with protecting the brand. I really hope we can all come to a place where we respectfully disagree.”