Michigan State University’s Board of Trustees has argued that there was no “secret vote” behind its recent decision to continue withholding documents relating to the university’s handling of disgraced ex-MSU doctor Larry Nassar.
In sworn affidavits, all eight board members said while they did meet “informally” to discuss releasing the documents in April, there were no votes or formal actions taken at the closed-door meeting.
The affidavits — written versions of sworn, under oath testimony — were filed as part of MSU’s response to a recent lawsuit by survivors and parents of survivors of Nassar’s abuse who argue that the board violated Michigan’s Open Meetings Act in their deliberations.
The documents have been sought by state attorneys general for years, who said the emails and personnel records contained in them would be essential to investigating how MSU allowed Nassar’s abuse to continue for so long.
MSU’s board has repeatedly declined to turn the documents over, arguing they are protected by attorney-client privilege.
In April, attorney general Dana Nessel sent a letter to MSU’s board reaffirming her request for the documents. She was prompted by board chair Rema Vassar, who Nessel said contacted her office saying she would release the documents if they were asked for.
A week after the letter, however, Vassar announced that the board would not waive privilege and release the documents.
Nessel told The State News at the time she had "literally no idea" why Vassar would ask her to request the documents and then not follow through on releasing them.
The lawsuit centers around the board's private meeting, which occurred between the letter and Vassar’s announcement.
The complaint argues that the board must have taken a vote during the secret meeting to decide whether they would release the documents.
MSU argued that no decisions were made at that closed-door meeting and that it was an "informal" discussion.
They argue that while deciding to waive privilege over the documents would be a decision, keeping the privilege in place is not a decision, rather the default and the previous position of the board.
The university asked that, because the meeting was informal and no votes were taken, the court dismiss the claims alleging that the board violated the Open Meetings Act.
That law broadly mandates that Michigan’s public bodies do their business in public, prohibiting votes and formal decision making in closed sessions.
University boards are largely exempted from the Open Meetings Act, MSU argues, citing past cases where Michigan courts have ruled that university boards should have more ability to conduct their business secretly than other public boards, like city councils.
The plaintiffs' attorney, Azzam Elder, did not return a message left with his assistant seeking comment at time of publication.
Despite MSU’s legal defense of the April decision to withhold the documents, changing circumstances and bullish board members have created some hope for eventual release.
The board has long argued that the documents can’t be released because of legal disagreements with 12 of the university’s insurers regarding a $500 million settlement to Nassar survivors.
The insurers argued that MSU’s failure to act on reports of Nassar’s abuse left the university outside its policies and on the hook for the settlement, according to court filings.
In September, the last of those cases was resolved. Vassar, the board chair, said at the time that she wasn’t sure if that would affect the board’s stance on the documents.
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The board’s commitment to continue withholding the documents was tested by a surprise motion at their October meeting.
During comments from the faculty liaisons to the board, trustee Dennis Denno leaned forward and asked that the board take a much-requested public vote on releasing the documents. However, his abrupt motion was killed by the board’s parliamentarians, who said it was not allowed by the board's bylaws.
Board chair Rema Vassar was initially supportive of Denno’s motion but eventually moved on with the meeting, acknowledging that the rules prohibited it.
“I apologize for not being able to honor your wish for transparency in this moment," Vassar said at the meeting.
“You never have anything to apologize to me for,” Denno said.
The failed attempt did spur a new idea: A special meeting for the board to vote on the release of the documents.
Trustee Dan Kelly proposed the plan after Denno’s motion, suggesting the board plan a public meeting with one agenda item, to vote on the documents.
To make the special meeting happen, five trustees would need to request it, according to the bylaws.
Vassar has not returned multiple calls and messages from The State News asking if the board intends to call for the proposed special meeting. The bylaws designate Vassar as the board’s sole representative to the media.
