The Volokh Conspiracy - Dartmouth Chairman Responds:

On Friday, the Dartmouth Chairman of the Board Ed Haldeman responded to my open letter of last week.

His statement simply does not respond to the concerns that I raised in my letter. Here's what I said: "There you have it: I was denied reelection either because of the content of my speech or for some unnamed reason for which I received no notice or opportunity to respond."

In his statement, Haldeman describes the process of trustee review in detail: an initial meeting with the Chairman and the head of the governance committee and an opportunity to speak to the full board and address the issues that the trustee is aware of. I was aware, of course, that my controversial speech would be an issue and I took time before the board to express my regret for the harshness of the language and content in the speech. At that point, however, I left the room and the board went into a secret executive session where new matters and charges can be raised to which I was given no opportunity to respond.

So my central point remains unanswered by Haldeman's letter: either they threw me off the board for the content of my speech--the only tangible issue I knew of and had an opportunity to address--or for some other reason arising for the first time in secret executive session of which I was not aware and to which I could not respond.

In a house editorial on Friday entitled "Wrongful Termination" the Editors of The Dartmouth (who have been far from fans of the petition trustees' efforts) wrote:

Assuming that no egregious act remains undisclosed (and there has been no indication that this is the case), Zywicki's removal disregards the will of the alumni who put him on the Board, and contradicts the democratic manner in which alumni elect trustees.

Dissenting opinions are essential to the operation of any governing body. While Zywicki may have behaved unprofessionally, the public reprimand issued by the Board was sufficient punishment. It is one thing to reprimand a trustee for making statements against the College in a public forum, but to remove dissenting opinions from the boardroom is to undermine the will of the alumni who voted in support of those very views.

I remain as puzzled at the editors of The Dartmouth about the basis for this action. I am not aware of any "egregious" acts that would justify the board majority's act. If any such allegations arose, it happened behind closed doors in executive session after I was given an opportunity to address the board. The fact that there are those on the Board who apparently believe this to be a fair and efficient process says a lot about the judgment and insularity of the Board itself. Note, too, that this was one of the first decisions taken by a newly expanded Board--one for the first time since 1891 sitting in violation of a longstanding compact between Dartmouth alumni and the Board, under which the alumni were empowered to elect half of the non-ex officio trustees. Unless they chose to recuse themselves, a new crop of appointees who had never worked closely with me, were evidently involved in the decision as well.

T.J. Rodgers provides a glimpse inside the closed-door process (without revealing details) in a story in The Dartmouth this morning:

Trustee T.J. Rodgers '70, who like Zywicki was nominated to be a candidate for the Board via petition and was successfully reelected at the April meeting, compared the reelection process to a "witch-hunt trial" and said it was "an affront to due process" in an e-mail to The Dartmouth.

"[Zywicki] was ejected by a secret vote — he was not allowed to know the vote count or even the reasons behind his ejection," Rodgers said in the e-mail.

Rodgers added that he believes the decision not to reelect Zywicki was "an embarrassment for the Board."

"The effect of Todd's ejection has been to warn me and any other trustee likely to speak his or her own mind to watch our step," he said in the e-mail.

With respect to the issue of free speech, other trustees were reelected at the same board meeting who made public statements that could be interpreted as harmful to Dartmouth. Consider the infamous statement by charter trustee Brad Evans that "a position on the Board of Trustees was too valuable from a financial standpoint to give to a student or a young alumnus/a - that spots on the Board should be reserved for alumni who can donate large amounts of money to the college. [Evans] also noted that one of the major problems of petition candidate success was that they took spots away from large donors."

Evans was among those reelected at the same meeting that bounced me. Let me make clear that I believe that Evans has every right to express his views of what he considers good for Dartmouth: for him, apparently it's denigrating the input of ordinary graduates and selling board seats to the highest bidder. To the best of my knowledge, Evans has never publicly apologized for his statements. Nonetheless, I voted for his reelection because even though he made public statements with which I strongly disagree and which I believe to be harmful to the College, he wasn't making College policy--he was expressing his own views. That's what independent directors should do. And it is a principle I have applied equally.

Let me stress that I respect Chairman Haldeman highly: he is an ethical and truthful man and has been a fair and efficient chairman. I don't blame him for this act by the majority of the board. The board's rules establish a kangaroo-court procedure followed by a vote by a secret ballot. The final vote tally is not announced. Ed delivered the outcome of the board's vote to me in private and offered me the opportunity to pretend like I had resigned rather than having been voted off (I appreciate the genuineness of his offer even though I unhesitatingly declined it). Other board members suggested resignation as well, but in a less-charitable spirit. I appreciate Ed's steadiness and effort to lead Dartmouth toward a fresh start, a goal that I share, but apparently not a majority of the board. In Joe Malchow's accurate words, "Call the dismissal of Professor Todd Zywicki the most cowardly post-armistice blindsiding in the history of gentlemanly warfare."

Knowing Ed Haldeman, I can't imagine that he is trying to mislead the Dartmouth community, although his letter implies that I had full notice and opportunity to address charges made against me. If so, then the only issue that I knew of was my speech. If no new issues or charges arose in the board's closed session, then Chairman Haldeman can clear that up easily by making a statement to that effect. He needn't go into detail of any charges, but just make a public statement as to whether new charges arose and whether I was given an opportunity to respond. Instead, he simply repeated his bland description of the process, leaving me as puzzled as ever.

Free speech and governance transparency were the two issues that motivated me to run for trustee in the first place. Yet here we are, four years later, and a majority of the Dartmouth Trustees still can't bring themselves to embrace those concepts.

	[Todd Zywicki, April 20, 2009 at 4:18pm] Trackbacks Dartmouth Chairman Responds: On Friday, the Dartmouth Chairman of the Board Ed Haldeman responded to my open letter of last week. His statement simply does not respond to the concerns that I raised in my letter. Here's what I said: "There you have it: I was denied reelection either because of the content of my speech or for some unnamed reason for which I received no notice or opportunity to respond." In his statement, Haldeman describes the process of trustee review in detail: an initial meeting with the Chairman and the head of the governance committee and an opportunity to speak to the full board and address the issues that the trustee is aware of. I was aware, of course, that my controversial speech would be an issue and I took time before the board to express my regret for the harshness of the language and content in the speech. At that point, however, I left the room and the board went into a secret executive session where new matters and charges can be raised to which I was given no opportunity to respond. So my central point remains unanswered by Haldeman's letter: either they threw me off the board for the content of my speech--the only tangible issue I knew of and had an opportunity to address--or for some other reason arising for the first time in secret executive session of which I was not aware and to which I could not respond. In a house editorial on Friday entitled "Wrongful Termination" the Editors of The Dartmouth (who have been far from fans of the petition trustees' efforts) wrote: Assuming that no egregious act remains undisclosed (and there has been no indication that this is the case), Zywicki's removal disregards the will of the alumni who put him on the Board, and contradicts the democratic manner in which alumni elect trustees. Dissenting opinions are essential to the operation of any governing body. While Zywicki may have behaved unprofessionally, the public reprimand issued by the Board was sufficient punishment. It is one thing to reprimand a trustee for making statements against the College in a public forum, but to remove dissenting opinions from the boardroom is to undermine the will of the alumni who voted in support of those very views. I remain as puzzled at the editors of The Dartmouth about the basis for this action. I am not aware of any "egregious" acts that would justify the board majority's act. If any such allegations arose, it happened behind closed doors in executive session after I was given an opportunity to address the board. The fact that there are those on the Board who apparently believe this to be a fair and efficient process says a lot about the judgment and insularity of the Board itself. Note, too, that this was one of the first decisions taken by a newly expanded Board--one for the first time since 1891 sitting in violation of a longstanding compact between Dartmouth alumni and the Board, under which the alumni were empowered to elect half of the non-ex officio trustees. Unless they chose to recuse themselves, a new crop of appointees who had never worked closely with me, were evidently involved in the decision as well. T.J. Rodgers provides a glimpse inside the closed-door process (without revealing details) in a story in The Dartmouth this morning: Trustee T.J. Rodgers '70, who like Zywicki was nominated to be a candidate for the Board via petition and was successfully reelected at the April meeting, compared the reelection process to a "witch-hunt trial" and said it was "an affront to due process" in an e-mail to The Dartmouth. "[Zywicki] was ejected by a secret vote — he was not allowed to know the vote count or even the reasons behind his ejection," Rodgers said in the e-mail. Rodgers added that he believes the decision not to reelect Zywicki was "an embarrassment for the Board." "The effect of Todd's ejection has been to warn me and any other trustee likely to speak his or her own mind to watch our step," he said in the e-mail. With respect to the issue of free speech, other trustees were reelected at the same board meeting who made public statements that could be interpreted as harmful to Dartmouth. Consider the infamous statement by charter trustee Brad Evans that "a position on the Board of Trustees was too valuable from a financial standpoint to give to a student or a young alumnus/a - that spots on the Board should be reserved for alumni who can donate large amounts of money to the college. [Evans] also noted that one of the major problems of petition candidate success was that they took spots away from large donors." Evans was among those reelected at the same meeting that bounced me. Let me make clear that I believe that Evans has every right to express his views of what he considers good for Dartmouth: for him, apparently it's denigrating the input of ordinary graduates and selling board seats to the highest bidder. To the best of my knowledge, Evans has never publicly apologized for his statements. Nonetheless, I voted for his reelection because even though he made public statements with which I strongly disagree and which I believe to be harmful to the College, he wasn't making College policy--he was expressing his own views. That's what independent directors should do. And it is a principle I have applied equally. Let me stress that I respect Chairman Haldeman highly: he is an ethical and truthful man and has been a fair and efficient chairman. I don't blame him for this act by the majority of the board. The board's rules establish a kangaroo-court procedure followed by a vote by a secret ballot. The final vote tally is not announced. Ed delivered the outcome of the board's vote to me in private and offered me the opportunity to pretend like I had resigned rather than having been voted off (I appreciate the genuineness of his offer even though I unhesitatingly declined it). Other board members suggested resignation as well, but in a less-charitable spirit. I appreciate Ed's steadiness and effort to lead Dartmouth toward a fresh start, a goal that I share, but apparently not a majority of the board. In Joe Malchow's accurate words, "Call the dismissal of Professor Todd Zywicki the most cowardly post-armistice blindsiding in the history of gentlemanly warfare." Knowing Ed Haldeman, I can't imagine that he is trying to mislead the Dartmouth community, although his letter implies that I had full notice and opportunity to address charges made against me. If so, then the only issue that I knew of was my speech. If no new issues or charges arose in the board's closed session, then Chairman Haldeman can clear that up easily by making a statement to that effect. He needn't go into detail of any charges, but just make a public statement as to whether new charges arose and whether I was given an opportunity to respond. Instead, he simply repeated his bland description of the process, leaving me as puzzled as ever. Free speech and governance transparency were the two issues that motivated me to run for trustee in the first place. Yet here we are, four years later, and a majority of the Dartmouth Trustees still can't bring themselves to embrace those concepts.