Tuesday, April 23, 2024

Ex-board chair Vassar rebukes investigation’s findings of misconduct, says evidence was ‘profoundly flawed,’ investigators were biased

March 24, 2024
Trustee Rema Vassar speaks at the Board of Trustees Meeting on Oct. 28, 2022.
Trustee Rema Vassar speaks at the Board of Trustees Meeting on Oct. 28, 2022. —
Photo by Devin Anderson-Torrez | The State News

Michigan State University’s embattled former board chair, Rema Vassar, has released a lengthy response to an independent investigation that spurred her resignation as chair, arguing the findings of widespread misconduct are poorly supported and that the investigators were biased.

Vassar’s argument — which was made in a 22 page report authored by her attorneys — is the investigation was conducted without due process for her and the subsequent report lacked “essential” information. The report criticizes the firm, Miller & Chevalier, saying the recommendations made based on its work are “unsupported and profoundly flawed.”

“Our opinion is that while the report is purported to be ‘independent’, it is not,” said Vassar’s response, which was released early Sunday morning.

Vassar has publicly challenged the veracity of the firm’s report since it was released in late February. She alleged the findings — that she and fellow trustee Dennis Denno violated conflict of interest policies, ​​interfered in university affairs and orchestrated attacks on colleagues, among other things — were racially motivated against her, as the first Black woman to chair MSU’s board. 

This new formal response, however, is her most specific and detailed rebuttal to date, going through each of the firm’s findings and attempting to discredit them.

Since the investigation was released, Vassar was censured by the rest of the board, stripped of all official duties and referred to Michigan Gov. Gretchen Whitmer for removal from office.

In a vote last week, MSU’s academic congress moved 1,512 to 55 to urge Whitmer to remove her. The governor’s office has said Whitmer is monitoring the situation but has yet to reach a decision.

Vassar argues in her rebuttal the investigation was biased from the start, as the firm was hired by MSU’s administration to investigate then-unsubstantiated allegations against her.

“It is axiomatic that ‘he who pays the piper calls the tune’,” her response said.

Vassar then criticizes the firm for not releasing the interview transcripts, documents and audio recordings its investigation relied on. She argues she was often taken out of context or portrayed unfairly in the firm’s summaries of the over 15 hours of interviews she sat for with investigators.

In her discussion of that issue, Vassar hints at possible litigation against MSU or the firm.

She said she “intends to take formal steps to obtain all investigation materials” and instructed the firm to preserve all records relating to the work. Requests for document preservation are often a first step in civil litigation.

Vassar also argues the firm should disclose the identities of all those interviewed in the report, many of whom were anonymized. She says the firm ignored her “right to confront her accusers and cross-examine their stories.”

“As a result, there is no way to verify the truthfulness of their accounts,” Vassar argues.

The firm explains its decision to protect the identities of their sources in the report, saying many of its findings showed a pattern of retaliation by Vassar against those who challenged her.

Report mixed up private jet dates 

Vassar’s response also criticizes the investigation for mixing up the date of an MSU basketball game Vassar traveled to on a donor’s private jet. 

The inaccurate timeline undercuts the firm’s argument that Vassar was told not to embark on the jet travel before the game, she argues.

Miller & Chevalier found that Vassar violated MSU’s conflict of interest policy by accepting private jet flights and courtside basketball tickets from a university donor for a March 23, 2023 game in New York City.

When asked about this in interviews, Vassar said no one told her that was an issue. The firm sharply criticized her for that defense, pointing to a March 11, 2023 email Vassar received from MSU’s general counsel specifically saying trustees should not accept private jet travel from donors.

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However, Vassar asserts in her response she actually accepted the jet flights and tickets to a Feb. 4, 2023, game in New York, weeks before the email was sent. She says she traveled to the March 23 game by commercial airline.

“The report confuses the two games, making its conclusions unsupported and incorrect,” Vassar’s response said.

Miller & Chevalier also found Vassar violated MSU’s conflict of interest policy because, after the game, she pushed MSU employees to give the donor rights to MSU’s trademark for a Name, Image and Likeness (NIL) collective he was trying to start.

Vassar’s response argues that isn’t a conflict because the donor didn’t intend to profit off the NIL collective. Rather, his collective would only “assist in the recruitment and retention of athletes.”

NIL collectives are designed to financially support student-athletes, though they don’t qualify for 501C(3) charitable status and the definitions and legality of the organizations are largely unsettled.

Worries about the unclear nature of NIL collectives were what held up the deal before Vassar interfered, according to Miller & Chevalier’s report. The firm found that MSU administrators were concerned about the university getting involved in the “unsettled legal landscape relating to NIL collectives.”

Vassar also argues even if she had agreed that pushing for the collective after accepting the gifts was a conflict, the issue is moot because MSU ultimately ignored her pleas and declined to approve the trademark rights.

“So, any alleged pressure or conflict of interest did not result in favorable action by the university,” Vassar’s response said.

Vassar is protected by free speech in making statements meant to support students, “even if some are made uncomfortable”

Miller & Chevalier faulted Vassar for allegedly encouraging students to orchestrate attacks against Chair of the Faculty Senate Jack Lipton, who had publicly opposed her. 

However, Vassar argues she is permitted under the board’s code of ethics to use her judgment about what’s best for the university and its students, and she acted out of a genuine concern for students as a result of Lipton’s conduct.  

“(Miller & Chevalier) seems unable to understand that a Trustee may reasonably conclude that her or his fiduciary duty requires actions and statements that others might consider harmful to the University,” the response said. “Such disagreement is routine in executive bodies, not a basis for corrective action.”

The Miller & Chevalier report reviewed recordings provided by an individual, referred to in the report as Interviewee 10, who recorded a Nov. 1, 2023 conversation they had with Vassar and Denno.

Students called the meeting to solicit Vassar and Denno’s advice in advance of an upcoming meeting they were scheduled to have with then-Interim President Teresa Woodruff on “issues of interest to certain student groups,” the report said. 

In recordings from that meeting, the trustees argued that comments Lipton made in reference to students in support of Vassar at an October meeting were racially charged and offensive, according to the report. 

Lipton — referring to disruptions by attendees in support of Vassar at that meeting — said in a statement published in The Detroit News that Vassar “elected to let the mob rule the room.”

Lipton has since apologized for that comment, saying he meant to convey that, as board chair, Vassar had the sole authority to bring order to the room, but chose not to. 

According to the report, the trustees encouraged Interviewee 10 and the other individuals in the conversation to publicly smear Lipton as a racist on the basis of those comments.

“The other thing you can do to help [myself and Chair Vassar], at least for me, is attack Jack Lipton, the Chair of the Faculty Senate. I mean this guy called you a mob… call him out, call him a racist,” Denno said, according to the report. 

The investigators also reviewed text messages between Denno and Interviewee 10. 

“Interviewee 10 shared text messages reflecting that on November 14, 2023, Trustee Denno provided them with the email address of The Detroit News reporter that published Dr. Lipton’s statement,” the report said. “Interviewee 10 asked Trustee Denno about what they should say to the reporter, to which Trustee Denno replied ‘Lipton=racist.’”

The trustees also gave the students inaccurate, confidential information about university affairs — including that MSU lost its accreditation the summer prior due to Woodruff’s and Provost Thomas Jeitschko’s neglect — for students to “hold onto like a trump card,” to embarrass the administration, according to the the firm’s initial report.

Denno then allegedly suggested another way to put pressure on the administration. 

“I think the trump card is embarrassing them [referring to the Administration],” Denno told students, according to transcribed audio from the meeting included in the report. “They do not like being embarrassed. The Provost and Interim President are looking for their next jobs; they just don’t want to be embarrassed. They want to come out with no scandals.”

Palestinian student activist Saba Saed told The State News she was Interviewee 10 and that she started recording conversations with the trustees because she was “sussed out” by them. She said she believed the trustees “exploited racial identities” to support their campaign against colleagues who have publicly disapproved of them.

However, Vassar’s response said Vassar was unaware of the “anonymous allegation” that she “improperly encouraged underrepresented students to call Jack Lipton a racist,” until she was confronted about it by investigators. That compromises her right to due process, the response said. 

Furthermore, Miller & Chevalier’s refusal to disclose the recordings it reviewed or provide transcripts prevents Vassar from cross-examining with her own account of the conversation, according to Vassar’s response. 

Miller & Chevalier’s decision not to analyze the appropriateness of Lipton’s comment, when contrasted with their willingness to make a subjective judgment on the appropriateness of Vassar’s alleged comments, compromises the validity of the finding and suggests bias, the response said.

“Miller & Chevalier ruled out the very analysis necessary to determine whether Dr. Vassar’s speech violated any rules or guidelines,” the response said. “Instead, the firm apparently manipulated its inquiry so as to reach a planned result: Dr. Vassar must have acted from motive of ‘personal animus against Dr. Lipton, likely generated by Dr. Lipton’s call for Chair Vassar’s resignation.’”

“Putting aside Miller and Chevalier’s impressive skill in armchair psychological analysis, its own refusal to consider that Dr. Vassar acted because she believed Dr. Lipton made a statement that many interpreted as racist inescapably corrupted its conclusion.”

The Miller & Chevalier report found Vassar violated her fiduciary duty because she “did not constructively engage with Dr. Lipton on his word choice.” Vassar’s attorneys say that isn’t true, and that Miller & Chevalier’s own report confirms that. 

Miller & Chevalier’s report reviews emails showing that Vassar did, in fact, contact Lipton to discuss his “mob” comment.

The response said Miller & Chevalier’s finding that Vassar violated her fiduciary duties in speaking with students about Lipton’s comments limit her free speech, setting a dangerous precedent for free speech on campus.

“There is no telling what damage could be done to free expression on MSU’s campus if the Report’s erroneous legal formulation were followed,” the response said. 

Firm used unfair tactics in investigating alleged settlement meddling 

Miller & Chevalier found Vassar overstepped in single-handedly attempting to settle a lawsuit from controversial former business dean Sanjay Gupta.

Vassar argues its tactics in doing so were shoddy and prejudiced against her.

Gupta resigned as the dean of the Eli Broad College of Business in August 2022 after an Office of Institutional Equity investigation found that he failed to report sexual misconduct by one of his subordinates. Gupta disputed the decision and took legal action against the university and members of administration. 

Miller & Chevalier’s investigation found that Vassar attempted to settle Gupta’s lawsuit without the knowledge or consent of the other trustees, violating board bylaws.

The firm made that conclusion based on emails about the attempted settlement, though it noted that the emails alone are “not definitive proof.” Vassar’s response calls that “remarkable” and “emblematic of a fast-and-loose approach” taken by investigators.

Miller & Chevalier also faulted Vassar for saying she had no recollection of parts of the settlement talks. In general, the firm said Vassar had a “wavering recollection” of events that “rendered her statements unreliable.”

Vassar’s response points out the firm did not fault another trustee, newly-appointed chair Dan Kelly, for having to refresh his recollection of the Gupta settlement issue.

“This is another example of Miller and Chevalier’s unfair and disparate treatment of Dr. Vassar and the firm’s propensity to jump to the worst possible conclusion regarding her statements and actions,” Vassar’s response said.

It also questions Miller & Chevalier’s decision not to contact Gupta, his attorney or Alec McAree, an MSU foundation board member who was involved in settlement negotiations.

Report disproportionately weighed Vassar's actions during campus shooting

Vassar’s attorneys defended board members’ actions during the Feb. 13, 2023 mass shooting, following the report’s findings of “well-intentioned” interference.

The investigation found Vassar inserted herself into phone calls between MSU and grieving families and that board members asked to enter areas in Sparrow Hospital reserved for victims and their families, causing the hospital to request that such visits cease.

The firm’s report said those actions “purportedly interfered with the Administration’s ability to respond effectively to the crisis.”

The Miller & Chevalier report found Vassar’s actions during the shooting, “though well‐intended, encroached on an area of responsibility reserved for the Administration.”

Vassar’s attorneys say that finding unfairly singles Vassar out, given the reported actions of other board members at Sparrow Hospital.

Vassar’s attorneys also defended the board’s actions during the shooting, saying the report “never cited any guidelines for appropriate trustee response, making it impossible to determine what responsibilities were outside of the Board’s purview.”

At the time of the shooting, there was no explicit guidance for board members to follow in emergency situations. Three months prior to the shooting, an outside crisis management firm called the lack of guidance the “biggest challenge” MSU’s crisis communications team faced.

Firm failed to fully investigate attempt to release Nassar documents

The report found that Vassar unilaterally attempted to negotiate the release of the thousands of long-withheld documents relating to the university’s handling of disgraced ex-MSU doctor Larry Nassar with the state Attorney General Dana Nessel, without the knowledge of the board.

Vassar’s attorneys say she consistently told investigators she had no contact with the Attorney General’s office. They instead say that Trustee Brianna Scott, who wrote the list of allegations that spurred the investigation, admitted to contacting Nessel’s office.

The investigation found that Vassar’s “unilateral intervention in discussions between MSU and the Department of Attorney General” violated board policies.

Vassar’s attorneys say the firm ignored evidence to the contrary. 

“Miller & Chevalier ignored contacts from witnesses who offered evidence supporting Dr. Vassar’s recollection,” Vassar’s attorneys said. “For example, the Executive Director of POSSE, a parent group advocating against sexual violence, called investigators to provide information establishing that Dr. Vassar did not contact the Attorney General’s office as alleged. The firm never followed up.”

Scott first alleged that Vassar asked Nessel for a letter requesting MSU waive attorney-client privilege over the documents without the board’s approval or knowledge. But when Nessel’s letter came, the board wasn’t in agreement on whether to approve the release, resulting in an unsuccessful attempt that baffled Nessel. 

Though the report said there is not sufficient evidence to support the claim that Vassar initiated contact with the attorney general, it did affirm that Vassar prompted the renewed demand for the documents. Vassar attended meetings with members of the attorney general’s office, despite her claims that it was a third party who prompted the dialogue, according to the firm’s report.

Vassar’s attorneys say it was Scott who prompted the request in a call to Nessel on April 16, 2023.

“On a call the next day in which a legal update was provided, Trustee Scott recalled the discussion in which she spoke for the Board by instructing the Attorney General that it did not want to release the documents,” the response said. “The Report did not explore this course of events.”

Firm failed to investigate Vassar's allegations regarding letter's author

Vassar’s attorneys say the report did not properly address concerns over who wrote the letter of allegations that prompted the investigation into her conduct.

Investigators “ignored information provided by Dr. Vassar’s counsel indicating that the drafter of Trustee Scott’s letter was someone else.”

Vassar has previously claimed that fellow trustee Renee Knake Jefferson was the true author of Scott’s October 2023 letter, one piece of an “agenda” that has roots in the Governor’s office.

Vassar claimed Whitmer used her personal connection with Jefferson to spur the writing of the letter and subsequent push for Vassar’s removal on an October 2023 podcast appearance. 

Whitmer would then use the board chaos as reason to give her the power to appoint all university governing board members herself, Vassar claimed.

"The mayhem (within the MSU board), the mass confusion that happened, was her entree into saying 'this is why. This is why they need to be appointed,'" Vassar said on the podcast. "There’s all these other agendas about (Whitmer) having a broader overreach over education."

Jefferson denied she had a role in the supposed scheme.

"The former Chair’s assertions that I promoted a so-called ‘political agenda’ are false," she wrote in a statement provided by a university spokesperson to The State News. "Our fiduciary duty requires that all Trustees uphold the University’s mission, which has guided my service above all else.”

Jefferson told investigators that she provided feedback on Scott’s letter, but that Scott "didn’t write anything or take anything out because I told her to."

Miller & Chevalier let Scott off easy

The response said Miller & Chevalier applied “undefined and varying” standards to different trustees, resulting in the firm recommending Scott be censured, while Vassar was recommended to the governor for removal and stripped of her committee assignments. 

The board ultimately voted to take these actions during a March 3, 2024 special meeting

The response said Scott’s leaking of the letter to the board detailing her allegations of misconduct by Vassar is a more egregious violation than any of Vassar’s violations. 

Scott’s leaking of the letter — which contained attorney-client privileged communications relating to the Gupta settlement — violated the code of ethics by disclosing non-public information without proper authorization, the Miller & Chevalier report said. 

The attorneys also argued that Scott defamed Vassar by making “groundless” allegations against Vassar. 

Some of Scott’s initial allegations against Vassar were not corroborated by Miller & Chevalier, including that she bullied Woodruff and attempted to keep word of her meddling out of an official report about the February campus shooting.

Vassar wanted to provide her cell phone to investigators, but they wouldn’t compromise with her

Miller & Chevalier’s investigation was flawed because the firm refused to compromise with Vassar by allowing her to approve the search terms investigators could employ to search her cell phone, the response said. 

“Investigators requested that Dr. Vassar produce her personal cellular telephone for forensic examination, but the firm refused to disclose the scope of its proposed review, the search terms that would be employed, or even the general topics it intended to explore,” the response said. 

The attorneys claim Vassar wanted to approve the search terms in order to protect her privacy as well as the students with whom she had communicated. 

“Incredibly, the firm then complained in its Report that Dr. Vassar’s failure to turn over her cellular telephone may have impeded its investigation,” the response said.

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